House of Commons portcullis
House of Commons
Session 1999-2000
Internet Publications
Other Bills before Parliament
Arrangement of Clauses (Contents)

Armed Forces Discipline Bill [H.L.]
 
 

 
 
A

B I L L

[AS AMENDED IN STANDING COMMITTEE D]

TO

Amend the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 in relation to custody, the right to elect court-martial trial and appeals against findings made or punishments awarded on summary dealing or summary trial; and for connected purposes.

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
 

 
Custody
Custody without charge.     1. - (1) For section 75 of the Army Act 1955 (provisions for avoiding delay after arrest) there is substituted-
 
 

"Custody
Limitations on custody without charge.     75. - (1) A person arrested under section 74 of this Act shall not be kept in military custody without being charged except in accordance with sections 75A to 75C of this Act.
 
      (2) If at any time the commanding officer of a person who is kept in military custody without being charged-
 
 
    (a) becomes aware that the grounds for keeping that person in military custody have ceased to apply; and
 
    (b) is not aware of any other grounds on which continuing to keep that person in military custody could be justified under the provisions of this Act,
  it shall be the duty of the commanding officer, subject to subsection (3) below, to order his immediate release from military custody.
 
      (3) A person who appears to his commanding officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.
 
      (4) For the purposes of this section and sections 75A to 75K of this Act a person is to be treated as charged with an offence when he is informed in accordance with regulations of the Defence Council that a charge is to be reported to his commanding officer under section 76(1) of this Act.
 
Authorisation of custody without charge.     75A. - (1) Where a person is arrested under section 74 of this Act-
 
 
    (a) the arrest, and
 
    (b) any grounds on which he is being kept in military custody without being charged,
  shall be reported as soon as practicable to his commanding officer.
 
      (2) Until such a report is made, the person may be kept in military custody without being charged, but only if the person who made the arrest has reasonable grounds for believing that keeping him in military custody without charge is necessary-
 
 
    (a) to secure or preserve evidence relating to an offence for which he is under arrest, or
 
    (b) to obtain such evidence by questioning him.
      (3) After receiving a report under subsection (1) above the commanding officer shall as soon as practicable determine-
 
 
    (a) whether the requirements of subsection (4) below are satisfied, and
 
    (b) if so, whether to exercise his powers under that subsection;
  and the person to whom the report relates may be kept in military custody for such period as is necessary to enable the commanding officer to make that determination.
 
      (4) If in relation to the person to whom the report relates the commanding officer has reasonable grounds for believing-
 
 
    (a) that keeping him in military custody without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and
 
    (b) that the investigation is being conducted diligently and expeditiously,
  he may authorise the keeping of that person in military custody.
 
      (5) An authorisation under subsection (4) above-
 
 
    (a) if given less than 12 hours after the relevant time, shall end not more than 12 hours after the relevant time;
 
    (b) if given not less than 12 but less than 36 hours after the relevant time, shall end not more than 36 hours after the relevant time;
 
    (c) if given not less than 36 but less than 48 hours after the relevant time, shall end not more than 48 hours after the relevant time.
      (6) A person shall not be kept in military custody later than 48 hours after the relevant time without being charged except in accordance with section 75C of this Act.
 
      (7) In this Act "the relevant time" in relation to a person arrested under section 74 of this Act means the time of the arrest.
 
Review of custody by commanding officer.     75B. - (1) The commanding officer of a person kept in military custody in accordance with section 75A of this Act shall, subject to subsection (3) below, review the keeping of that person in military custody not later than the end of the period for which it is authorised.
 
      (2) Subsections (4) and (5) of section 75A of this Act shall apply on each review under this section as they apply where a report is received under subsection (1) of that section.
 
      (3) A review may be postponed-
 
 
    (a) if, having regard to all the circumstances prevailing at the expiry of the last authorisation under subsection (4) of that section, it is not practicable to carry out the review at that time;
 
    (b) without prejudice to the generality of paragraph (a) above-
 
      (i) if at that time the person in military custody is being questioned and the commanding officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he is being questioned; or
 
      (ii) if at that time the commanding officer is not readily available.
      (4) If a review is postponed under subsection (3) above-
 
 
    (a) it shall be carried out as soon as practicable after the expiry of the last authorisation under section 75A(4) of this Act, and
 
    (b) the keeping in military custody of the person to whom the review relates shall by virtue of this paragraph be authorised until that time.
Extension of custody without charge.     75C. - (1) If, on an application by the commanding officer of a person arrested under section 74 of this Act, a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in military custody is justified, the judicial officer may by order authorise the keeping of that person in military custody.
 
      (2) A judicial officer may not hear an application under this section unless the person to whom it relates-
 
 
    (a) has been informed in writing of the grounds for the application, and
 
    (b) has been brought before him for the hearing.
      (3) The person to whom the application relates shall be entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented-
 
 
    (a) the judicial officer shall adjourn the hearing to enable him to obtain representation, and
 
    (b) he may be kept in military custody during the adjournment.
      (4) For the purposes of this section, the continued keeping of a person in military custody is justified only if-
 
 
    (a) keeping him in custody without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and
 
    (b) the investigation is being conducted diligently and expeditiously.
      (5) Subject to subsection (7) below, an application under this section may be made-
 
 
    (a) at any time before the end of 48 hours after the relevant time; or
 
    (b) if it is not practicable for the application to be heard at the expiry of that period, as soon as practicable thereafter but not more than 96 hours after the relevant time.
      (6) Where subsection (5)(b) above applies, an authorisation on a review under section 75B of this Act may be for a period ending more than 48 hours after the relevant time, but may not be-
 
 
    (a) for a period of more than six hours, or
 
    (b) for a period ending more than 96 hours after the relevant time.
      (7) If-
 
 
    (a) an application under this section is made more than 48 hours after the relevant time, and
 
    (b) it appears to the judicial officer that it would have been reasonable for the commanding officer to make the application before the end of that period,
  the judicial officer shall refuse the application.
 
      (8) Where on an application under this section relating to any person the judicial officer is not satisfied that there are reasonable grounds for believing that continuing to keep that person in military custody is justified, he shall-
 
 
    (a) refuse the application, or
 
    (b) adjourn the hearing of it until a time not later than 48 hours after the relevant time.
      (9) The person to whom the application relates may be kept in military custody during the adjournment.
 
      (10) The period for which a judicial officer, on an application under this section, may authorise the keeping of a person in military custody shall be such period, ending not more than 96 hours after the relevant time, as he thinks fit having regard to the evidence before him.
 
      (11) Where a judicial officer refuses an application under this section at any time less than 48 hours after the relevant time, he may direct that the person to whom it relates forthwith be charged or released from military custody.
 
      (12) Where a judicial officer refuses an application under this section at any later time, he shall direct that the person to whom it relates forthwith be charged or released from military custody.
 
Custody without charge: other cases.     75D. - (1) Sections 75 to 75C of this Act apply-
 
 
    (a) where a person is delivered into military custody under section 187(2) or (3), 188(2) or 190A(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 military custody,
  as they apply where a person is arrested under section 74 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 military custody following arrest under section 186 or 190A 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 military 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.     75E. - (1) The Defence Council may by regulations make provision with respect to-
 
 
    (a) the delegation by the commanding officer of a person in military custody of any of the commanding officer's functions under sections 75 to 75C of this Act;
 
    (b) circumstances in which a person kept in military 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 75 to 75C of this Act or of regulations under paragraph (b) above.
      (2) Any reference in sections 75A to 75C of this Act to a period of time is to be treated as approximate only."
 
      (2) For section 75 of the Air Force Act 1955 (provisions for avoiding delay after arrest) there is substituted-
 
 

"Custody
Limitations on custody without charge.     75. - (1) A person arrested under section 74 of this Act shall not be kept in air-force custody without being charged except in accordance with sections 75A to 75C of this Act.
 
      (2) If at any time the commanding officer of a person who is kept in air-force custody without being charged-
 
 
    (a) becomes aware that the grounds for keeping that person in air-force custody have ceased to apply; and
 
    (b) is not aware of any other grounds on which continuing to keep that person in air-force custody could be justified under the provisions of this Act,
  it shall be the duty of the commanding officer, subject to subsection (3) below, to order his immediate release from air-force custody.
 
      (3) A person who appears to his commanding officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.
 
      (4) For the purposes of this section and sections 75A to 75K of this Act a person is to be treated as charged with an offence when he is informed in accordance with regulations of the Defence Council that a charge is to be reported to his commanding officer under section 76(1) of this Act.
 
Authorisation of custody without charge.     75A. - (1) Where a person is arrested under section 74 of this Act-
 
 
    (a) the arrest, and
 
    (b) any grounds on which he is being kept in air-force custody without being charged,
  shall be reported as soon as practicable to his commanding officer.
 
      (2) Until such a report is made, the person may be kept in air-force custody without being charged, but only if the person who made the arrest has reasonable grounds for believing that keeping him in air-force custody without charge is necessary-
 
 
    (a) to secure or preserve evidence relating to an offence for which he is under arrest, or
 
    (b) to obtain such evidence by questioning him.
      (3) After receiving a report under subsection (1) above the commanding officer shall as soon as practicable determine-
 
 
    (a) whether the requirements of subsection (4) below are satisfied, and
 
    (b) if so, whether to exercise his powers under that subsection;
  and the person to whom the report relates may be kept in air-force custody for such period as is necessary to enable the commanding officer to make that determination.
 
      (4) If in relation to the person to whom the report relates the commanding officer has reasonable grounds for believing-
 
 
    (a) that keeping him in air-force custody without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and
 
    (b) that the investigation is being conducted diligently and expeditiously,
  he may authorise the keeping of that person in air-force custody.
 
      (5) An authorisation under subsection (4) above-
 
 
    (a) if given less than 12 hours after the relevant time, shall end not more than 12 hours after the relevant time;
 
    (b) if given not less than 12 but less than 36 hours after the relevant time, shall end not more than 36 hours after the relevant time;
 
    (c) if given not less than 36 but less than 48 hours after the relevant time, shall end not more than 48 hours after the relevant time.
      (6) A person shall not be kept in air-force custody later than 48 hours after the relevant time without being charged except in accordance with section 75C of this Act.
 
      (7) In this Act "the relevant time" in relation to a person arrested under section 74 of this Act means the time of the arrest.
 
Review of custody by commanding officer.     75B. - (1) The commanding officer of a person kept in air-force custody in accordance with section 75A of this Act shall, subject to subsection (3) below, review the keeping of that person in air-force custody not later than the end of the period for which it is authorised.
 
      (2) Subsections (4) and (5) of section 75A of this Act shall apply on each review under this section as they apply where a report is received under subsection (1) of that section.
 
      (3) A review may be postponed-
 
 
    (a) if, having regard to all the circumstances prevailing at the expiry of the last authorisation under section 75A(4) of this Act, it is not practicable to carry out the review at that time;
 
    (b) without prejudice to the generality of paragraph (a) above-
 
      (i) if at that time the person in air-force custody is being questioned and the commanding officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he is being questioned; or
 
      (ii) if at that time the commanding officer is not readily available.
      (4) If a review is postponed under subsection (3) above-
 
 
    (a) it shall be carried out as soon as practicable after the expiry of the last authorisation under section 75A(4) of this Act, and
 
    (b) the keeping in air-force custody of the person to whom the review relates shall by virtue of this paragraph be authorised until that time.
Extension of custody without charge.     75C. - (1) If, on an application by the commanding officer of a person arrested under section 74 of this Act, a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in air-force custody is justified, the judicial officer may by order authorise the keeping of that person in air-force custody.
 
      (2) A judicial officer may not hear an application under this section unless the person to whom it relates-
 
 
    (a) has been informed in writing of the grounds for the application, and
 
    (b) has been brought before him for the hearing.
      (3) The person to whom the application relates shall be entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented-
 
 
    (a) the judicial officer shall adjourn the hearing to enable him to obtain representation, and
 
    (b) he may be kept in air-force custody during the adjournment.
      (4) For the purposes of this section, the continued keeping of a person in air-force custody is justified only if-
 
 
    (a) keeping him in custody without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and
 
    (b) the investigation is being conducted diligently and expeditiously.
      (5) Subject to subsection (7) below, an application under this section may be made-
 
 
    (a) at any time before the end of 48 hours after the relevant time; or
 
    (b) if it is not practicable for the application to be heard at the expiry of that period, as soon as practicable thereafter but not more than 96 hours after the relevant time.
      (6) Where subsection (5)(b) above applies, an authorisation on a review under section 75B of this Act may be for a period ending more than 48 hours after the relevant time, but may not be-
 
 
    (a) for a period of more than six hours, or
 
    (b) for a period ending more than 96 hours after the relevant time.
      (7) If-
 
 
    (a) an application under this section is made more than 48 hours after the relevant time, and
 
    (b) it appears to the judicial officer that it would have been reasonable for the commanding officer to make the application before the end of that period,
  the judicial officer shall refuse the application.
 
      (8) Where on an application under this section relating to any person the judicial officer is not satisfied that there are reasonable grounds for believing that continuing to keep that person in air-force custody is justified, he shall-
 
 
    (a) refuse the application, or
 
    (b) adjourn the hearing of it until a time not later than 48 hours after the relevant time.
      (9) The person to whom the application relates may be kept in air-force custody during the adjournment.
 
      (10) The period for which a judicial officer, on an application under this section, may authorise the keeping of a person in air-force custody shall be such period, ending not more than 96 hours after the relevant time, as he thinks fit having regard to the evidence before him.
 
      (11) Where a judicial officer refuses an application under this section at any time less than 48 hours after the relevant time, he may direct that the person to whom it relates forthwith be charged or released from air-force custody.
 
      (12) Where a judicial officer refuses an application under this section at any later time, he shall direct that the person to whom it relates forthwith be charged or released from air-force custody.
 
Custody without charge: other cases.     75D. - (1) Sections 75 to 75C of this Act apply-
 
 
    (a) where a person is delivered into air-force custody under section 187(2) or (3), 188(2) or 190A(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 air-force custody,
  as they apply where a person is arrested under section 74 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 air-force custody following arrest under section 186 or 190A 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 air-force 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.     75E. - (1) The Defence Council may by regulations make provision with respect to-
 
 
    (a) the delegation by the commanding officer of a person in air-force custody of any of the commanding officer's functions under sections 75 to 75C of this Act;
 
    (b) circumstances in which a person kept in air-force 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 75 to 75C of this Act or of regulations under paragraph (b) above.
      (2) Any reference in sections 75A to 75C of this Act to a period of time is to be treated as approximate only."
 
      (3) After section 47 of the 1957 Act there is inserted-
 
 

"Custody
Limitations on custody without charge.     47A. - (1) A person arrested under section 45 of this Act shall not be kept in naval custody without being charged except in accordance with sections 47B to 47D of this Act.
 
      (2) If at any time the commanding officer of a person who is kept in naval custody without being charged-
 
 
    (a) becomes aware that the grounds for keeping that person in naval custody have ceased to apply; and
 
    (b) is not aware of any other grounds on which continuing to keep that person in naval custody could be justified under the provisions of this Act,
  it shall be the duty of the commanding officer, subject to subsection (3) below, to order his immediate release from naval custody.
 
      (3) A person who appears to his commanding officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.
 
      (4) For the purposes of this section and sections 47B to 47L of this Act a person is to be treated as charged with an offence when he is informed in accordance with regulations of the Defence Council that a charge is to be reported to his commanding officer under section 52B(1) of this Act.
 
Authorisation of custody without charge.     47B. - (1) Where a person is arrested under section 45 of this Act-
 
 
    (a) the arrest, and
 
    (b) any grounds on which he is being kept in naval custody without being charged,
  shall be reported as soon as practicable to his commanding officer.
 
      (2) Until such a report is made, the person may be kept in naval custody without being charged, but only if the person who made the arrest has reasonable grounds for believing that keeping him in naval custody without charge is necessary-
 
 
    (a) to secure or preserve evidence relating to an offence for which he is under arrest, or
 
    (b) to obtain such evidence by questioning him.
      (3) After receiving a report under subsection (1) above the commanding officer shall as soon as practicable determine-
 
 
    (a) whether the requirements of subsection (4) below are satisfied, and
 
    (b) if so, whether to exercise his powers under that subsection;
  and the person to whom the report relates may be kept in naval custody for such period as is necessary to enable the commanding officer to make that determination.
 
      (4) If in relation to the person to whom the report relates the commanding officer has reasonable grounds for believing-
 
 
    (a) that keeping him in naval custody without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and
 
    (b) that the investigation is being conducted diligently and expeditiously,
  he may authorise the keeping of that person in naval custody.
 
      (5) An authorisation under subsection (4) above-
 
 
    (a) if given less than 12 hours after the relevant time, shall end not more than 12 hours after the relevant time;
 
    (b) if given not less than 12 but less than 36 hours after the relevant time, shall end not more than 36 hours after the relevant time;
 
    (c) if given not less than 36 but less than 48 hours after the relevant time, shall end not more than 48 hours after the relevant time.
      (6) A person shall not be kept in naval custody later than 48 hours after the relevant time without being charged except in accordance with section 47D of this Act.
 
      (7) In this Act "the relevant time" in relation to a person arrested under section 45 of this Act means the time of the arrest.
 
Review of custody by commanding officer.     47C. - (1) The commanding officer of a person kept in naval custody in accordance with section 47B of this Act shall, subject to subsection (3) below, review the keeping of that person in naval custody not later than the end of the period for which it is authorised.
 
      (2) Subsections (4) and (5) of section 47B of this Act shall apply on each review under this section as they apply where a report is received under subsection (1) of that section.
 
      (3) A review may be postponed-
 
 
    (a) if, having regard to all the circumstances prevailing at the expiry of the last authorisation under subsection (4) of that section, it is not practicable to carry out the review at that time;
 
    (b) without prejudice to the generality of paragraph (a) above-
 
      (i) if at that time the person in naval custody is being questioned and the commanding officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he is being questioned; or
 
      (ii) if at that time the commanding officer is not readily available.
      (4) If a review is postponed under subsection (3) above-
 
 
    (a) it shall be carried out as soon as practicable after the expiry of the last authorisation under section 47B(4) of this Act, and
 
    (b) the keeping in naval custody of the person to whom the review relates shall by virtue of this paragraph be authorised until that time.
Extension of custody without charge.     47D. - (1) If, on an application by the commanding officer of a person arrested under section 45 of this Act, a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in naval custody is justified, the judicial officer may by order authorise the keeping of that person in naval custody.
 
      (2) A judicial officer may not hear an application under this section unless the person to whom it relates-
 
 
    (a) has been informed in writing of the grounds for the application, and
 
    (b) has been brought before him for the hearing.
      (3) The person to whom the application relates shall be entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented-
 
 
    (a) the judicial officer shall adjourn the hearing to enable him to obtain representation, and
 
    (b) he may be kept in naval custody during the adjournment.
      (4) For the purposes of this section, the continued keeping of a person in naval custody is justified only if-
 
 
    (a) keeping him in custody without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and
 
    (b) the investigation is being conducted diligently and expeditiously.
      (5) Subject to subsection (7) below, an application under this section may be made-
 
 
    (a) at any time before the end of 48 hours after the relevant time; or
 
    (b) if it is not practicable for the application to be heard at the expiry of that period, as soon as practicable thereafter but not more than 96 hours after the relevant time.
      (6) Where subsection (5)(b) above applies, an authorisation on a review under section 47C of this Act may be for a period ending more than 48 hours after the relevant time, but may not be-
 
 
    (a) for a period of more than six hours, or
 
    (b) for a period ending more than 96 hours after the relevant time.
      (7) If-
 
 
    (a) an application under this section is made more than 48 hours after the relevant time, and
 
    (b) it appears to the judicial officer that it would have been reasonable for the commanding officer to make the application before the end of that period,
  the judicial officer shall refuse the application.
 
      (8) Where on an application under this section relating to any person the judicial officer is not satisfied that there are reasonable grounds for believing that continuing to keep that person in naval custody is justified, he shall-
 
 
    (a) refuse the application, or
 
    (b) adjourn the hearing of it until a time not later than 48 hours after the relevant time.
      (9) The person to whom the application relates may be kept in naval custody during the adjournment.
 
      (10) The period for which a judicial officer, on an application under this section, may authorise the keeping of a person in naval custody shall be such period, ending not more than 96 hours after the relevant time, as he thinks fit having regard to the evidence before him.
 
      (11) Where a judicial officer refuses an application under this section at any time less than 48 hours after the relevant time, he may direct that the person to whom it relates forthwith be charged or released from naval custody.
 
      (12) Where a judicial officer refuses an application under this section at any later time, he shall direct that the person to whom it relates forthwith be charged or released from naval custody.
 
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."
      (4) Section 47G(3)(d) does not apply in the case of an accused who is awaiting sentence.
 
      (5) An order under section 47G(2) does not authorise the keeping of the accused in naval 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."
 
Release from custody after charge or during proceedings.     5. - (1) After section 75H of the Army Act 1955 there is inserted-
 
 
"Release from custody after charge or during proceedings.     75J. - (1) This section applies where, at a hearing under section 75F(1) of this Act or on a review under section 75G(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in military custody.
 
    (2) Where this section applies, the accused-
 
 
    (a) subject to paragraph (b) below, shall be released from military custody forthwith, but
 
    (b) if he is subject to military law only by virtue of section 131 or 205(1)(ea), (eb), (g) or (h) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.
      (3) A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.
 
      (4) A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act."
 
      (2) After section 75H of the Air Force Act 1955 there is inserted-
 
 
"Release from custody after charge or during proceedings.     75J. - (1) This section applies where, at a hearing under section 75F(1) of this Act or on a review under section 75G(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in air-force custody.
 
    (2) Where this section applies, the accused-
 
 
    (a) subject to paragraph (b) below, shall be released from air-force custody forthwith, but
 
    (b) if he is subject to air-force law only by virtue of section 131 or 205(1)(ff), (h) or (i) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.
      (3) A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.
 
      (4) A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act."
 
      (3) After section 47J of the 1957 Act there is inserted-
 
 
"Release from custody after charge or during proceedings.     47K. - (1) This section applies where, at a hearing under section 47G(1) of this Act or on a review under section 47H(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in naval custody.
 
    (2) Where this section applies, the accused-
 
 
    (a) subject to paragraph (b) below, shall be released from naval custody forthwith, but
 
    (b) if he is a person to whom section 51 of this Act applies or is subject to this Act by virtue of section 111(3) or (5) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.
      (3) A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.
 
      (4) A person guilty of an offence under this section shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.
 
      (5) Any such offence shall be treated as if it were an offence under Part I of this Act."
 
 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2000
Prepared 16 March 2000