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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.

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(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

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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

 
 

 
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