Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 3 — Powers of Arrest, Search and Entry
Chapter 3 — Powers of Entry, Search and Seizure
43

91
Entry for purpose of arrest etc by other persons
(1)
An officer may authorise a person subject to service law (other than a service
policeman) to exercise, in relation to premises within subsection (2), the
powers conferred by section 90(1) on a service policeman; but this is subject to
subsection (3).
5
(2)
The premises are—
(a)
service living accommodation of a person whose commanding officer
is the officer mentioned in subsection (1);
(b)
premises occupied as a residence (alone or with other persons) by—
(i)
a person subject to service law whose commanding officer is
10
that officer; or
(ii)
a civilian subject to service discipline whose commanding
officer is that officer;
(c)
premises which that officer has reasonable grounds for believing to be
within paragraph (b).
15
(3)
An officer may give an authorisation under subsection (1) only if—
(a)
the arrest is to be made under section 67;
(b)
the offence in respect of which the arrest is to be made is a relevant
offence (as defined by section 84); and
(c)
the officer has reasonable grounds for believing that, if the arrest could
20
not be made before the earliest time by which it would be practicable to
obtain the assistance mentioned in subsection (4)—
(i)
the person to be arrested might evade arrest, conceal, damage,
alter or destroy evidence, or present a danger to himself or
others; or
25
(ii)
discipline or morale among members of any of Her Majesty’s
forces might be undermined.
(4)
That assistance is—
(a)
the assistance of a service policeman, or
(b)
in a case where corresponding powers conferred by section 17(1)(b) or
30
(c) of PACE or any other enactment are exercisable by a member of a
UK police force, the assistance of a member of such a force capable of
exercising those corresponding powers.
(5)
An officer may authorise a person subject to service law (other than a service
policeman) to exercise, in relation to premises within subsection (2), the
35
powers conferred by section 90(4) on a service policeman; but this is subject to
subsection (6).
(6)
An officer may give an authorisation under subsection (5) in relation to
premises within section 90(4)(b) or (c) only if it is not practicable to obtain the
assistance of a service policeman in time to take the necessary action to save life
40
or limb or prevent serious damage to property.
(7)
The Defence Council may by regulations provide for the delegation by a
commanding officer of his functions under this section.

Armed Forces Bill
Part 3 — Powers of Arrest, Search and Entry
Chapter 4 — Supplementary
44

Additional powers of entry, search and seizure
92
Power to make provision conferring powers of entry and search after arrest
The Secretary of State may by order make provision, in relation to premises
occupied or controlled by a person who—
(a)
has been arrested under section 67, and
5
(b)
is being held in service custody without being charged with a service
offence,
which is equivalent to that made by any provision of section 18 of PACE (entry
and search after arrest), subject to such modifications as the Secretary of State
considers appropriate.
10
93
Power to make provision conferring power of seizure etc
The Secretary of State may by order make provision, in relation to—
(a)
a service policeman who, in connection with the investigation of a
service offence, is lawfully on premises which are searchable by virtue
of this Part, or
15
(b)
any power of seizure or retention conferred by or under this Part,
which is equivalent to that made by any provision of sections 19 to 21 of PACE
(which relate to seizure) or section 22(1) to (4) of that Act (power to retain
property seized), subject to such modifications as the Secretary of State
considers appropriate.
20
Chapter 4
Supplementary
94
Property in possession of service police or CO
(1)
The Secretary of State may by regulations make provision with respect to the
disposal of property which has come into the possession of a service policeman
25
or a person’s commanding officer in connection with the investigation of a
service offence.
(2)
The regulations may in particular—
(a)
enable the Court Martial, the Service Civilian Court or a judge advocate
to make an order for the delivery of the property to the person
30
appearing to the court or judge advocate to be the owner of the
property or, if the owner cannot be ascertained, to make such order
with respect to the property as the court or judge advocate considers
appropriate;
(b)
enable the commanding officer of a person charged with a service
35
offence—
(i)
to determine that any property seized under this Part in
connection with the investigation of a service offence should be
delivered to the person appearing to the commanding officer to
be the owner of the property; or
40
(ii)
if the owner cannot be ascertained, to make such other
determination with respect to the delivery of the property as the
commanding officer considers appropriate;
(c)
enable the commanding officer of a person—

Armed Forces Bill
Part 3 — Powers of Arrest, Search and Entry
Chapter 4 — Supplementary
45

(i)
in whose possession the property was before it was seized
under this Part, or
(ii)
who claims to be the owner of the property,

to determine that it should be delivered to that person;
(d)
make provision as to appeals against orders made by virtue of
5
paragraph (a) and determinations made by virtue of paragraph (b) or
(c); and
(e)
provide that, at the end of a specified period from the making of an
order by virtue of paragraph (a), the right of any person to take
proceedings for the recovery of the property is to cease.
10
(3)
A determination made by virtue of subsection (2)(b) or (c) does not affect the
right of any person to recover any property delivered in pursuance of the
determination from the person to whom it is delivered.
95
Saving provision
(1)
Nothing in this Part affects—
15
(a)
any power of a service policeman or commanding officer to enter and
search, or order the entry and search of, premises which are occupied
for the purposes of any of Her Majesty’s forces, to the extent that the
premises do not constitute service living accommodation;
(b)
any power of a commanding officer, otherwise than in connection with
20
the investigation of a service offence or the exercise of any power of
arrest, to enter and search, or order the entry and search of, service
living accommodation;
(c)
any power of a commanding officer, otherwise than in connection with
the investigation of a service offence or the exercise of any power of
25
arrest, to search, or order the search of, a person or to stop and search,
or order the stop and search of, a service vehicle; or
(d)
any power of a service policeman or commanding officer to search, or
order the search of, a service vehicle which is not in the charge of any
person.
30
(2)
In subsection (1) “service vehicle” means a vehicle, ship or aircraft which—
(a)
belongs to any of Her Majesty’s forces; or
(b)
is in use for the purposes of any of those forces.
96
“Service living accommodation”, “premises” and other definitions
(1)
In this Part “service living accommodation” means (subject to subsection (2))—
35
(a)
any building or part of a building which is occupied for the purposes of
any of Her Majesty’s forces but is provided for the exclusive use of a
person subject to service law, or of such a person and members of his
family, as living accommodation or as a garage;
(b)
any other room, structure or area (whether on land or on a ship) which
40
is occupied for the purposes of any of Her Majesty’s forces and is used
for the provision of sleeping accommodation for one or more persons
subject to service law; or
(c)
any locker which—
(i)
is provided by any of Her Majesty’s forces for personal use by a
45
person subject to service law in connection with his sleeping
accommodation, but

Armed Forces Bill
Part 4 — Custody
Chapter 1 — Custody without Charge
46

(ii)
is not in a room, structure or area falling within paragraph (b).
(2)
Premises are not service living accommodation for the purposes of this Part if,
or to the extent that, they are being used for keeping persons in service custody.
(3)
In this Part “premises” includes any place and, in particular, includes—
(a)
any vehicle, ship or aircraft; and
5
(b)
any tent or movable structure.
(4)
In this Part “enactment” includes any provision of—
(a)
an Act of the Scottish Parliament or Northern Ireland legislation, or
(b)
an instrument made under such an Act or under Northern Ireland
legislation,
10

and also includes any rule of law in Scotland.
97
Power to use reasonable force
Where a power is conferred on any person by or under this Part, he may use
reasonable force, if necessary, in the exercise of the power.
Part 4
15
Custody
Chapter 1
Custody without Charge
98
Limitations on custody without charge
(1)
Except in accordance with sections 99 to 102, a person arrested under section
20
67 may not be kept in service custody without being charged with a service
offence.
(2)
If at any time the commanding officer of a person who is kept in service
custody without being charged with a service offence—
(a)
becomes aware that the grounds for keeping that person in service
25
custody have ceased to apply, and
(b)
is not aware of any other grounds on which continuing to keep that
person in service custody could be justified under this Act,

the commanding officer must, subject to subsection (3), order his immediate
release from service custody.
30
(3)
A person who appears to his commanding officer to have been unlawfully at
large when he was arrested may not be released under subsection (2).
(4)
Section 299(4) (cases where persons temporarily released from service
detention are unlawfully at large) applies for the purposes of this section.
99
Authorisation by commanding officer of custody without charge
35
(1)
Where a person is arrested under section 67—
(a)
the arrest, and
(b)
any grounds on which he is being kept in service custody without being
charged with a service offence,

Armed Forces Bill
Part 4 — Custody
Chapter 1 — Custody without Charge
47


must be reported as soon as practicable to his commanding officer.
(2)
Until such a report is made, the person may be kept in service custody without
being charged with a service offence, but only if the person who made the
arrest has reasonable grounds for believing that keeping him in service
custody without being charged is necessary—
5
(a)
to secure or preserve evidence relating to a service offence for which he
is under arrest; or
(b)
to obtain such evidence by questioning him.
(3)
After receiving a report under subsection (1), the commanding officer must as
soon as practicable determine—
10
(a)
whether the requirements of subsection (4) 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 service custody for
such period as is necessary to enable the commanding officer to make that
determination.
15
(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 service custody without being charged with a
service offence is necessary to secure or preserve evidence relating to a
service offence for which he is under arrest or to obtain such evidence
20
by questioning him, and
(b)
that the investigation is being conducted diligently and expeditiously,

he may authorise the keeping of that person in service custody.
(5)
Subject to subsection (6), an authorisation under subsection (4) ends not more
than 12 hours after it is given.
25
(6)
Except in accordance with section 101 or 102, a person may not be kept in
service custody later than 48 hours after the arrest without being charged with
a service offence.
(7)
Where a person, while kept in service custody without being charged with a
service offence, is arrested under section 67 for another service offence—
30
(a)
subsections (1) to (5) apply in relation to the arrest for that other offence;
(b)
the reference in subsections (2)(a) and (4)(a) to a service offence for
which he is under arrest includes the service offence for which he was
originally arrested;
(c)
the reference in subsection (6) to the arrest is to be read as a reference to
35
the arrest for the service offence for which he was originally arrested;
and
(d)
the last authorisation under subsection (4) (if any) given in relation to
him ceases to have effect (and accordingly section 100 ceases to apply
in relation to that authorisation).
40
100
Review of custody by commanding officer
(1)
The commanding officer of a person kept in service custody in accordance with
section 99 must, subject to subsections (3) and (4), review the keeping of that
person in service custody not later than the end of the period for which it is
authorised.
45

Armed Forces Bill
Part 4 — Custody
Chapter 1 — Custody without Charge
48

(2)
Subsections (4) and (5) of section 99 apply on each review under this section as
they apply where a report is received under section 99(1).
(3)
A review may be postponed if, having regard to all the circumstances
prevailing at the expiry of the last authorisation under section 99(4), it is not
practicable to carry out the review at that time.
5
(4)
A review may also be postponed if at the expiry of the last authorisation under
section 99(4)—
(a)
the person in service 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
10
in connection with which the person is being questioned; or
(b)
the commanding officer is not readily available.
(5)
Subsection (4) does not limit the power to postpone under subsection (3).
(6)
If a review is postponed under subsection (3) or (4)—
(a)
it must be carried out as soon as practicable after the expiry of the last
15
authorisation under section 99(4); and
(b)
the keeping in service custody of the person to whom the review relates
is by virtue of this paragraph authorised until that time.
101
Extension by judge advocate of custody without charge
(1)
If, on an application by the commanding officer of a person arrested under
20
section 67, a judge advocate is satisfied that there are reasonable grounds for
believing that the continued keeping of that person in service custody is
justified, the judge advocate may by order authorise the keeping of that person
in service custody.
(2)
A judge advocate may not hear an application under this section unless the
25
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 is entitled to be legally represented
at the hearing and, if he is not so represented but wishes to be so represented—
30
(a)
the judge advocate must adjourn the hearing to enable him to obtain
representation; and
(b)
he may be kept in service custody during the adjournment.
(4)
The period for which a judge advocate, on an application under this section,
may authorise the keeping of a person in service custody is such period, ending
35
not more than 96 hours after the arrest, as he considers appropriate having
regard to the evidence before him.
(5)
Where a person, while kept in service custody without being charged with a
service offence, is arrested under section 67 for another service offence, the
reference in subsection (4) to the arrest is to be read as a reference to the arrest
40
for the service offence for which he was originally arrested.
(6)
For the purposes of this section and section 102, the continued keeping of a
person in service custody is justified only if—
(a)
keeping him in custody without being charged with a service offence is
necessary to secure or preserve evidence relating to a service offence for
45

Armed Forces Bill
Part 4 — Custody
Chapter 1 — Custody without Charge
49

which he is under arrest or to obtain such evidence by questioning him;
and
(b)
the investigation is being conducted diligently and expeditiously.
102
Further provision about applications under section 101
(1)
Subject to subsection (2), an application under section 101 may be made—
5
(a)
at any time before the end of 48 hours after the arrest; or
(b)
if it is not practicable for the application to be heard before the end of
that period, as soon as practicable thereafter but not more than 96 hours
after the arrest.
(2)
Where subsection (1)(b) applies, an authorisation on a review under section
10
100 may be for a period ending more than 48 hours after the arrest, 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 arrest.
(3)
If—
15
(a)
an application under section 101 is made more than 48 hours after the
arrest, and
(b)
it appears to the judge advocate that it would have been reasonable for
the commanding officer to make the application before the end of that
period,
20
the judge advocate must refuse the application.
(4)
Where on an application under section 101 relating to any person the judge
advocate is not satisfied that there are reasonable grounds for believing that the
continued keeping of that person in service custody is justified, he must—
(a)
refuse the application; or
25
(b)
adjourn the hearing of it until a time not later than 48 hours after the
arrest.
(5)
The person to whom the application relates may be kept in service custody
during the adjournment.
(6)
Where a judge advocate refuses an application under section 101 at any time
30
less than 48 hours after the arrest, he may direct that the person to whom it
relates must, without delay, be charged with a service offence or released from
service custody.
(7)
Where a judge advocate refuses an application under section 101 at any later
time, he must direct that the person to whom it relates must, without delay, be
35
charged with a service offence or released from service custody.
(8)
Where a person, while kept in service custody without being charged with a
service offence, is arrested under section 67 for another service offence, any
reference in this section to the arrest is to be read as a reference to the arrest for
the service offence for which he was originally arrested.
40
103
Custody without charge: other cases
Sections 98 to 102 apply—
(a)
where a person is transferred to or taken into service custody under
section 311(4), 313(4), 314(3) or 315(4), and