Armed Forces Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 13 — Discipline: Miscellaneous and Supplementary
Chapter 4 — Supplementary
159

for the enforcement of financial penalties by prescribed courts in England and
Wales, Scotland, Northern Ireland or the Isle of Man.
(2)
Regulations under this section may in particular make provision—
(a)
with respect to the cases in which such orders may be made;
(b)
with respect to the form and content of such orders, including the
5
matters to be certified in such orders;
(c)
with respect to the effect of such orders;
(d)
conferring functions in relation to such orders on the Defence Council;
(e)
for the delegation by the Defence Council of any of their functions in
relation to such orders.
10
(3)
Provision that may be made by the regulations by virtue of subsection (2)(c)
includes provision—
(a)
that a sum certified in such an order as outstanding is to be treated as if
it had been a fine imposed on a conviction by a court specified in the
order;
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(b)
for prescribed enforcement procedures to cease to be available, or to
become available, on the occurrence of prescribed events.
(4)
In this section—
“financial penalty” means—
(a)
a fine or service compensation order imposed by virtue of this
20
Act (including a fine or service compensation order with respect
to which an order under section 267 (order for service parent or
guardian to pay fine or compensation) has been made);
(b)
a sum adjudged to be paid under section 235(3) (forfeiture of
recognizance);
25
(c)
an order as to the payment of costs made by virtue of
regulations under section 26, or made under section 27, of the
Armed Forces Act 2001 (c. 19);
“prescribed” means prescribed, or of a description prescribed, by
regulations under this section.
30
Power to make provision in consequence of criminal justice enactments
320
Power to make provision in consequence of criminal justice enactments
(1)
The Secretary of State may make an order under this section if he considers it
appropriate to do so in consequence of a criminal justice enactment (see section
321).
35
(2)
An order under this section may make provision in relation to—
(a)
service policemen,
(b)
service courts (see section 321),
(c)
persons subject to service law,
(d)
civilians subject to service discipline, or
40
(e)
service law proceedings (see section 321),

which is equivalent to that made by a relevant provision, subject to such
modifications as the Secretary of State considers appropriate.
(3)
In this section “relevant provision” means—
(a)
the criminal justice enactment;
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Armed Forces Bill
Part 13 — Discipline: Miscellaneous and Supplementary
Chapter 4 — Supplementary
160

(b)
any enactment relating to a criminal justice matter (see section 321)
which is amended by the criminal justice enactment; or
(c)
any subordinate legislation made under—
(i)
the criminal justice enactment; or
(ii)
any Act which is amended by the criminal justice enactment.
5
(4)
An order under this section may make provision in such way as the Secretary
of State considers appropriate and may, in particular—
(a)
be made in relation to all or any cases to which the order-making power
extends;
(b)
apply the relevant provision (with or without modifications);
10
(c)
amend, repeal or revoke any enactment or subordinate legislation
(including the relevant provision and any provision of or made under
this Act).
321
Section 320: definitions
(1)
In section 320 a “criminal justice enactment” means an enactment which—
15
(a)
is contained in an Act passed after 1st January 2001; and
(b)
amends the law of England and Wales relating to any criminal justice
matter.
(2)
In section 320 and subsection (1) “criminal justice matter” means—
(a)
the powers of the police in connection with the investigation of offences
20
or the detection of offenders;
(b)
powers of arrest and detention in connection with crime or criminal
proceedings;
(c)
the functions of any authority in relation to criminal prosecutions;
(d)
remand in custody or on bail;
25
(e)
the rights and duties of a defendant in relation to proceedings in
civilian courts;
(f)
evidence or procedure in civilian courts;
(g)
the powers of civilian courts, including powers in relation to sentence;
(h)
such other matters relating to criminal justice as the Secretary of State
30
may by order prescribe for the purposes of this paragraph.
(3)
For the purposes of section 320, section 5 of the Criminal Justice (International
Co-operation) Act 1990 (c. 5) (transfer of UK prisoner to give evidence etc
overseas) is to be taken to be a criminal justice enactment.
(4)
In section 320 “service court” means—
35
(a)
the Court Martial;
(b)
the Summary Appeal Court;
(c)
the Service Civilian Court;
(d)
the Court Martial Appeal Court; or
(e)
the Supreme Court on an appeal brought from the Court Martial
40
Appeal Court.
(5)
In section 320 “service law proceedings” means proceedings under this Act or
the Court Martial Appeals Act 1968 (c. 20) (and does not include proceedings
relating to offences under sections 338 to 340 or under regulations made by
virtue of section 325(4)(b) or 337(5)(b)).
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Armed Forces Bill
Part 14 — Enlistment, Terms of Service etc
161

Other supplementary provisions
322
Burden of proof as respects excuses
(1)
This section applies to an offence under any of Parts 1 to 13 which is such that
a person who would otherwise commit the offence—
(a)
does not do so if he has a lawful excuse; or
5
(b)
does not do so if he has a reasonable excuse.
(2)
In proceedings for an offence to which this section applies, the defendant is to
be treated as not having had a lawful excuse or reasonable excuse (as the case
may be) unless sufficient evidence is adduced to raise an issue as to whether he
had such an excuse.
10
323
Exclusion of enactments requiring consent of Attorney General or DPP
Subject to section 61(2), no enactment requiring the consent of the Attorney
General or the Director of Public Prosecutions in connection with any
proceedings has effect in relation to proceedings under this Act for a service
offence.
15
324
Local probation boards
For section 5A of the Criminal Justice and Court Services Act 2000 (c. 43)
(inserted by Schedule 14 to this Act) substitute—
“5A
Local probation boards and service justice
(1)
A local probation board may, in pursuance of arrangements made with
20
the Secretary of State, carry out activities anywhere in the world in
relation to persons who are or have been subject to proceedings before
the Court Martial, the Summary Appeal Court or the Service Civilian
Court.
(2)
Any activities carried out in relation to such persons must correspond
25
to activities which the board is required or authorised to carry out in
relation to persons who have been charged with or convicted of
criminal offences.”
Second Group of Parts
Miscellaneous Matters
30
Part 14
Enlistment, Terms of Service etc
Enlistment, terms of service etc
325
Enlistment
(1)
The Defence Council may by regulations make provision with respect to the
35
enlistment of persons in the regular forces (including enlistment outside the
United Kingdom).

Armed Forces Bill
Part 14 — Enlistment, Terms of Service etc
162

(2)
The regulations may in particular make provision—
(a)
requiring the enlistment of persons in the regular forces to be
undertaken by recruiting officers;
(b)
as to the persons, whether or not members of the regular forces, who
may be appointed as recruiting officers;
5
(c)
prohibiting the enlistment of persons under the age of 18 without the
consent of prescribed persons;
(d)
deeming a person, in prescribed circumstances, to have attained (or not
to have attained) that age;
(e)
as to the procedure for enlistment (including requiring a recruiting
10
officer to attest the enlistment);
(f)
creating offences relating to knowingly giving false answers during the
enlistment procedure;
(g)
as to the approval for service of persons who have enlisted.
(3)
The regulations may also in particular make provision in connection with the
15
validity of a person’s enlistment, including provision—
(a)
as to when, how and on what basis the validity of a person’s enlistment
may be challenged;
(b)
deeming a person, in prescribed circumstances, to have been validly
enlisted;
20
(c)
conferring on a person a right to discharge in prescribed circumstances;
(d)
as to the status of a person until he is discharged.
(4)
Where the regulations create an offence they may provide—
(a)
that the offence is a service offence and is punishable by any
punishment mentioned in rows 2 to 12 of the Table in section 163; or
25
(b)
that the offence is an offence triable summarily by a civilian court in the
United Kingdom and is punishable by a fine not exceeding level 1 on
the standard scale.
(5)
In this section and sections 326 to 328 “prescribed” means prescribed by
regulations made by the Defence Council.
30
326
Terms and conditions of enlistment and service
(1)
The Defence Council may by regulations make provision with respect to the
terms and conditions of enlistment and service of persons enlisting, or who
have enlisted, in the regular forces.
(2)
The regulations may in particular make provision for the purposes of—
35
(a)
specifying the duration of the term for which a person is enlisted
(whether by reference to a number of years or another criterion or
both);
(b)
requiring any such term to be one of service with a regular force, or to
be in part service with a regular force and in part service with a reserve
40
force;
(c)
enabling a person to end his service with a regular force at a prescribed
time, or to transfer at a prescribed time to a reserve force;
(d)
restricting a person, in consideration of the acceptance by him of any
benefit or advantage, from exercising any right referred to in paragraph
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(c);

Armed Forces Bill
Part 14 — Enlistment, Terms of Service etc
163

(e)
enabling a person enlisted for a term of service of a prescribed
description to be treated as if he had enlisted for a term of service of a
different description;
(f)
enabling a person to extend or reduce the term of his service (whether
with a regular force or a reserve force, or both);
5
(g)
enabling a person to continue in service after completion of the term of
his service;
(h)
enabling a person in a reserve force to re-enter service with a regular
force;
(i)
enabling a person to restrict his service to service in a particular area;
10
(j)
requiring a person who has restricted his service to service in a
particular area to serve outside that area for a number of days in any
year not exceeding a prescribed maximum;
(k)
enabling service with a regular force to be undertaken on a part-time
basis.
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(3)
The exercise of any right conferred on a person by virtue of subsection (2) may
be made subject to prescribed conditions.
(4)
Regulations under subsection (2)(k) may require a person to serve only at such
times as he may be called out in accordance with the regulations.
(5)
The Defence Council may also by regulations make provision enabling—
20
(a)
a member of the regular army of or below the rank of warrant officer, or
(b)
a member of the Army Reserve of or below the rank of warrant officer
who is in permanent service on call-out under any provision of the
Reserve Forces Act 1980 (c. 9) or the Reserve Forces Act 1996 (c. 14),

to be transferred between corps without his consent in prescribed
25
circumstances.
(6)
Regulations under subsection (5) may in particular make provision for varying
the terms and conditions of service of a person transferred between corps.
(7)
In this section “corps” means any body of the regular army that may from time
to time be declared by Royal Warrant to be a corps.
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327
Desertion and absence without leave: forfeiture of service etc
(1)
The Defence Council may by regulations make provision—
(a)
with respect to the making of a confession by a member of the regular
forces that he is guilty of an offence under section 8 (desertion);
(b)
for the making of a determination as to whether a trial may be
35
dispensed with in the case of a person who makes such a confession;
(c)
for the forfeiture of a period of service of such a person where a trial is
so dispensed with.
(2)
The Defence Council may also by regulations make provision for the forfeiture
of a period of service of a member of the regular forces who is convicted of an
40
offence under section 8.
(3)
Regulations under subsection (1) or (2) may include provision for enabling a
determination to be made in prescribed circumstances restoring (in whole or in
part) a forfeited period of service.
(4)
The Defence Council may also by regulations make provision with respect to—
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Armed Forces Bill
Part 14 — Enlistment, Terms of Service etc
164

(a)
the issue of a certificate of absence in respect of a member of the regular
forces absent without leave for more than a prescribed period;
(b)
the effects of such a certificate (in particular in connection with the pay
and allowances of the person in respect of whom it is issued).
328
Discharge etc from the regular forces and transfer to the reserve forces
5
(1)
The Defence Council may by regulations make provision with respect to—
(a)
the discharge of members of the regular forces of or below the rank or
rate of warrant officer;
(b)
the transfer of such persons to the reserve forces.
(2)
The regulations may in particular make provision with respect to—
10
(a)
authorisation of a person’s discharge or transfer to a reserve force;
(b)
the status of a person who is entitled to be, but has not yet been,
discharged or transferred to a reserve force.
(3)
The regulations may also in particular make provision conferring on a warrant
officer (other than an acting warrant officer) a right to be discharged—
15
(a)
following his reduction in rank or rate; or
(b)
following his reduction in rank or rate in prescribed circumstances.
(4)
The regulations may also in particular make provision enabling—
(a)
the discharge of a person from the regular forces (including by virtue of
subsection (3)), or
20
(b)
the transfer of a person to a reserve force,
to be postponed in prescribed circumstances.
329
Restriction on administrative reduction in rank or rate
(1)
The rank or rate of a warrant officer or non-commissioned officer (“the relevant
person”) may be reduced only by an order within subsection (2).
25
(2)
An order is within this subsection if—
(a)
it is made by the relevant person’s commanding officer; and
(b)
it reduces the rank or rate of the relevant person—
(i)
by one acting rank or rate; or
(ii)
if he has no acting rank or rate, by one substantive rank or rate.
30
(3)
An order reducing the rank of a person who is a corporal in any of Her
Majesty’s air forces is within subsection (2)(b)(i) (if he is an acting corporal) or
(2)(b)(ii) (if he is not) if, and only if, it reduces his rank to the highest rank he
has held in that force as an airman.
(4)
A commanding officer who is of or below the rank of commodore, brigadier or
35
air commodore may make an order within subsection (2) only with the
permission of higher authority; but this does not apply if the relevant person is
a lance corporal or lance bombardier.
(5)
Nothing in this section applies to a reduction in rank or rate by virtue of a
sentence.
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(6)
Nothing in this section applies in relation to the reversion of a person,
otherwise than on account of his conduct, from his acting rank or rate to his
substantive rank or rate.