Armed Forces Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 1 — Offences
18

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Incitement
(1)
A person subject to service law commits an offence if he incites another person
to commit an offence to which this subsection applies.
(2)
Subsection (1) applies to any service offence except an offence under section 42.
(3)
A civilian subject to service discipline commits an offence if he incites another
5
person to commit an offence mentioned in section 39(4).
(4)
A person guilty of an offence under this section is liable to the same
punishment as he would be liable to if guilty of the offence incited.
41
Aiding, abetting, counselling or procuring
(1)
Where a person subject to service law aids, abets, counsels or procures the
10
commission by another person of an offence to which this subsection applies,
he commits that offence.
(2)
Subsection (1) applies to any service offence except an offence under section 42.
(3)
A person who by virtue of subsection (1) commits an offence is liable to be
charged, tried (including dealt with at a summary hearing) and punished as a
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principal offender.
(4)
Where a civilian subject to service discipline aids, abets, counsels or procures
the commission by another person of an offence mentioned in section 39(4), he
commits that offence and is liable to be charged, tried and punished as a
principal offender.
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Criminal conduct
42
Criminal conduct
(1)
A person subject to service law, or a civilian subject to service discipline,
commits an offence under this section if he does any act that—
(a)
is punishable by the law of England and Wales; or
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(b)
if done in England or Wales, would be so punishable.
(2)
A person may be charged with an offence under this section even if he could
on the same facts be charged with a different service offence.
(3)
A person guilty of an offence under this section is liable to—
(a)
if the corresponding offence under the law of England and Wales is
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under that law an offence punishable with imprisonment, any
punishment mentioned in the Table in section 163;
(b)
otherwise, any punishment mentioned in rows 5 to 12 of that Table.
(4)
Any sentence of imprisonment or fine imposed in respect of an offence under
this section must not exceed—
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(a)
if the corresponding offence under the law of England and Wales is a
summary offence, the maximum term of imprisonment or fine that
could be imposed by a magistrates’ court on summary conviction;
(b)
if that corresponding offence is an indictable offence, the maximum
sentence of imprisonment or fine that could be imposed by the Crown
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Court on conviction on indictment.

Armed Forces Bill
Part 1 — Offences
19

(5)
In subsection (4) “a summary offence” and “an indictable offence” mean,
respectively, a summary offence under the law of England and Wales and an
indictable offence under that law.
(6)
In this section and sections 45 to 49 “act” includes an omission and references
to the doing of an act are to be read accordingly.
5
(7)
In subsections (1) and (8) and sections 45 to 49 “punishable” means punishable
with a criminal penalty.
(8)
In this Act “the corresponding offence under the law of England and Wales”,
in relation to an offence under this section, means—
(a)
the act constituting the offence under this section; or
10
(b)
if that act is not punishable by the law of England and Wales, the
equivalent act done in England or Wales.
43
Attempting criminal conduct
(1)
Subsection (2) applies for the purpose of determining whether an attempt is an
offence under section 42.
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(2)
For that purpose section 1(4) of the Criminal Attempts Act 1981 (c. 47) (offences
that it is an offence to attempt) has effect as if for the words from “offence
which” to “other than” there were substituted “offence under section 42 of the
Armed Forces Act 2006 consisting of an act punishable by the law of England
and Wales as an indictable offence or an act that, if done in England or Wales,
20
would be so punishable by that law; but “indictable offence” here does not
include”.
(3)
Section 42(6) applies for the purposes of section 1(4) of the Criminal Attempts
Act 1981 as modified by this section.
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Trial of section 42 offence of attempt
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(1)
Where, in proceedings for a section 42 offence of attempt, there is evidence
sufficient in law to support a finding that the defendant did an act falling
within subsection (1) of section 1 of the Criminal Attempts Act 1981, the
question whether his act fell within that subsection is a question of fact.
(2)
In this section “a section 42 offence of attempt” means an offence under section
30
42 consisting of an act that is, or that would be if done in England or Wales, an
offence under section 1(1) of the Criminal Attempts Act 1981.
(3)
References in subsections (1) and (2) to section 1(1) of the Criminal Attempts
Act 1981 are to that provision as it has effect by virtue of section 43 above.
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Conspiring to commit criminal conduct
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(1)
For the purpose of determining whether an agreement that a course of conduct
be pursued is an offence under section 42—
(a)
sections 1(1) and 2 of the Criminal Law Act 1977 (c. 45) (conspiracy)
have effect as if any reference to an offence included a reference to an
act that, if done in England or Wales, would be punishable by the law
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of England and Wales; and

Armed Forces Bill
Part 1 — Offences
20

(b)
section 1(2) of that Act has effect as if it read—
“(2)
Where liability for any offence may be incurred without
knowledge on the part of the person committing it of any
particular fact or circumstance necessary for the commission of
it, a person is nevertheless not guilty by virtue of subsection (1)
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above of conspiracy to commit—
(a)
that offence, or
(b)
an act that would amount to that offence if done in
England or Wales,

unless he and at least one other party to the agreement intend
10
or know that that fact or circumstance shall or will exist at the
time when the conduct constituting the offence, or the act, is to
take place.”
(2)
Section 42(6) applies for the purposes of section 1(2) of the Criminal Law Act
1977 (c. 45) as substituted by this section.
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46
Inciting criminal conduct
(1)
Subsection (2) applies if a person subject to service law, or a civilian subject to
service discipline, incites another person to do any act that if done in England
or Wales would be punishable by the law of England and Wales.
(2)
Regardless of where the inciter intended the act to be done, the incitement shall
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be treated for the purposes of section 42(1) as an act that is punishable by the
law of England and Wales.
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Aiding, abetting, counselling or procuring criminal conduct
(1)
Subsection (2) applies if—
(a)
any person (“A”) does an act that is punishable by the law of England
25
and Wales or would be so punishable if done in England or Wales; and
(b)
a person subject to service law, or a civilian subject to service discipline,
aids, abets, counsels or procures A’s doing of that act.
(2)
Regardless of where the act aided, abetted, counselled or procured was done,
the aiding, abetting, counselling or procuring shall be treated for the purposes
30
of section 42(1) as an act that is punishable by the law of England and Wales.
(3)
For the purpose of determining whether an attempt is an act that falls within
subsection (1)(a) above, section 1(4) of the Criminal Attempts Act 1981 (c. 47)
has effect with the modification made by section 43.
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Provision supplementary to sections 43 to 47
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(1)
This section applies where—
(a)
an attempt, agreement or incitement, or a person’s aiding, abetting,
counselling or procuring, is an offence under section 42 by reason of
section 43, 45, 46 or 47; and
(b)
the act to which it relates (“the contemplated act”) is not an act that is
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(or that if done would have been) punishable by the law of England and
Wales.

Armed Forces Bill
Part 1 — Offences
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(2)
For the following purposes it shall be assumed that the contemplated act
amounted to the offence under the law of England and Wales that it would
have amounted to if it had been the equivalent act in England or Wales.
(3)
Those purposes are—
(a)
the purpose of determining what punishment may be imposed for the
5
offence under section 42;
(b)
the purpose of determining for the purposes of any of the following
provisions of this Act whether the act constituting the offence under
section 42, or the equivalent act done in England or Wales, is or would
be—
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(i)
an offence under the law of England and Wales;
(ii)
any particular such offence;
(iii)
such an offence of any particular description.
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Air Navigation Order offences
(1)
If a person subject to service law, or a civilian subject to service discipline, does
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in or in relation to a military aircraft any act that if done in or in relation to a
civil aircraft would amount to a prescribed Air Navigation Order offence, the
act shall be treated for the purposes of section 42(1) as punishable by the law of
England and Wales.
(2)
Where an act is an offence under section 42 by reason of subsection (1) above—
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(a)
section 42(8)(b) does not apply; and
(b)
it shall be assumed for the following purposes that the act amounted to
the offence under the law of England and Wales that it would have
amounted to if it had been done in or in relation to a civil aircraft.
(3)
Those purposes are—
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(a)
the purpose of determining what punishment may be imposed for the
offence under section 42;
(b)
the purpose of determining for the purposes of any of the following
provisions of this Act whether the act constituting the offence under
section 42 is—
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(i)
an offence under the law of England and Wales;
(ii)
any particular such offence;
(iii)
such an offence of any particular description.
(4)
In this section—
“military aircraft” has the meaning given by section 92 of the Civil
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Aviation Act 1982 (c. 16);
“civil aircraft” means an aircraft that is registered in the United Kingdom
and is not a military aircraft;
“Air Navigation Order offence” means an offence under an Order in
Council made under section 60 of the Civil Aviation Act 1982
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(whenever made, and whether or not also made under any other
enactment);
“prescribed” means prescribed by an order made by the Secretary of State
for the purposes of this section.

Armed Forces Bill
Part 2 — Jurisdiction and Time Limits
Chapter 1 — Jurisdiction
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Part 2
Jurisdiction and Time Limits
Chapter 1
Jurisdiction
Court Martial
5
50
Jurisdiction of the Court Martial
(1)
The Court Martial has jurisdiction to try any service offence.
(2)
In this Act “service offence” means—
(a)
any offence under Part 1;
(b)
an offence under section 107 (breach of requirement imposed on release
10
from custody);
(c)
an offence under section 228 (breach of service restraining order);
(d)
an offence under section 265 (failure to comply with financial statement
order);
(e)
any offence under Chapter 1 of Part 13 (testing for alcohol and drugs);
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(f)
any offence under regulations under section 325 (false answer during
enlistment in a regular force) or section 337 (service inquiries) that the
regulations provide is a service offence;
(g)
an offence under section 18 or 20 of the Armed Forces Act 1991 (c. 62)
(orders for the protection of children);
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(h)
an offence under any of sections 95 to 97 of the Reserve Forces Act 1996
(c. 14) (reserve forces offences); or
(i)
an offence under paragraph 5(1) of Schedule 1 to that Act (false answer
during enlistment in a reserve force) committed by a person within
paragraph 5(3) of that Schedule.
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Service Civilian Court
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Jurisdiction of the Service Civilian Court
(1)
The Service Civilian Court has jurisdiction to try any service offence
committed outside the British Islands by a civilian, except an offence within
subsection (2) or an offence in relation to which subsection (4) applies.
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(2)
The offences within this subsection are—
(a)
an indictable-only offence under section 42;
(b)
an offence under section 265 committed in respect of a financial
statement order made by a court other than the Service Civilian Court;
(c)
any service offence under regulations under section 325 or 337;
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(d)
an offence within section 50(2)(h) or (i) (Reserve Forces Act offences).
(3)
For the purposes of subsections (1) and (2)—
(a)
an offence is committed by a civilian if it is committed by a person who,
at the time when it is committed, is a civilian subject to service
discipline;
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Armed Forces Bill
Part 2 — Jurisdiction and Time Limits
Chapter 1 — Jurisdiction
23

(b)
an offence under section 42 is indictable-only if the corresponding
offence under the law of England and Wales is under that law an
offence which, if committed by an adult, is triable only on indictment.
(4)
This subsection applies in relation to an offence if the defendant is for the time
being—
5
(a)
a member of the regular or reserve forces; or
(b)
liable to recall.
(5)
For the purposes of subsection (4) a person is “liable to recall” if—
(a)
under section 65(1) of the Reserve Forces Act 1996 (c. 14) he is liable to
be recalled for service; or
10
(b)
he is liable to be recalled as mentioned in section 35(1) of the Reserve
Forces Act 1980 (c. 9).
Commanding officers
52
Charges capable of being heard summarily
(1)
A charge against a person (“the accused”) in respect of an offence is capable of
15
being heard summarily if (and only if) conditions A to C are met.
(2)
Condition A is that the offence is one that may be dealt with at a summary
hearing (see section 53).
(3)
Condition B is that the accused is—
(a)
an officer of or below the rank of commander, lieutenant-colonel or
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wing commander; or
(b)
a person of or below the rank or rate of warrant officer.
(4)
Condition C is (subject to subsections (5) and (6)) that the accused is—
(a)
subject to service law,
(b)
a member of a volunteer reserve force, or
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(c)
a member of an ex-regular reserve force who is subject to an additional
duties commitment,

from the time the offence is committed to the end of the summary hearing of
the charge.
(5)
If the offence is one under section 96(1) of the Reserve Forces Act 1996
30
committed by virtue of section 96(2) of that Act, condition C is that the accused
is—
(a)
liable to recall, or
(b)
a member of the regular forces,

from the time the offence is committed to the end of the summary hearing of
35
the charge.
(6)
If the offence is any other Reserve Forces Act offence, condition C is that the
accused is a member of a reserve force from the time the offence is committed
to the end of the summary hearing of the charge.
(7)
For the purposes of this section—
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(a)
a person is “liable to recall” if—
(i)
under section 65(1) of the Reserve Forces Act 1996 he is liable to
be recalled for service; or

Armed Forces Bill
Part 2 — Jurisdiction and Time Limits
Chapter 1 — Jurisdiction
24

(ii)
he is liable to be recalled as mentioned in section 35(1) of the
Reserve Forces Act 1980 (c. 9);
(b)
“Reserve Forces Act offence” means an offence within section 53(1)(k).
(8)
Where at any time it falls to a person to determine for the purposes of any
provision of this Act whether a charge is or would be capable of being heard
5
summarily, the references in subsections (4) to (6) to the end of the summary
hearing of the charge are to be read as references to that time.
53
Offences that may be dealt with at a summary hearing
(1)
The following service offences may be dealt with at a summary hearing—
(a)
an offence under section 4(3);
10
(b)
an offence under any of sections 9 to 15;
(c)
an offence under section 16(1)(a), or an offence under section 16(1)(c)
committed by omission;
(d)
an offence under any of sections 17 to 29;
(e)
an offence under section 30(1) of negligently doing an act that results in
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a person’s escape, or an offence under section 30(2);
(f)
an offence under any of sections 34 to 36;
(g)
an offence under section 42 (criminal conduct) within subsection (3);
(h)
an offence under section 107;
(i)
an offence under Chapter 1 of Part 13;
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(j)
any service offence under regulations under section 325 or 337;
(k)
an offence under section 96 or 97 of the Reserve Forces Act 1996 (c. 14)
of absence without leave.
(2)
Any reference in a paragraph of subsection (1), except paragraph (g), to an
offence includes an offence under section 39 of attempting to commit that
25
offence.
(3)
An offence under section 42 is within this subsection if the corresponding
offence under the law of England and Wales is—
(a)
an offence listed in either Part of Schedule 1 (criminal conduct offences
that may be dealt with at a summary hearing); or
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(b)
an offence under section 1 of the Criminal Attempts Act 1981 (c. 47) of
attempting to commit an (indictable) offence so listed.
(4)
The Secretary of State may by order amend Schedule 1.
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Charges which may be heard summarily only with permission or by senior
officer
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(1)
An officer may not hear summarily a charge in respect of an offence within
subsection (2) unless—
(a)
he has obtained the permission of higher authority; or
(b)
he is of or above the rank of rear admiral, major-general or air vice-
marshal.
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(2)
An offence is within this subsection if it is an offence under section 42 as
respects which the corresponding offence under the law of England and Wales
is—
(a)
an offence listed in Part 2 of Schedule 1; or