Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
50

(b)
in any other case where a person arrested by a member of a UK police
force or overseas police force is transferred to service custody,
as they apply where a person is arrested under section 67, subject to such
modifications as the Secretary of State may by order prescribe.
104
Custody without charge: supplementary
5
(1)
The Secretary of State may by regulations make provision—
(a)
for the delegation by the commanding officer of a person in service
custody of any of the commanding officer’s functions under sections 98
to 102;
(b)
with respect to circumstances in which a person kept in service custody
10
without being charged with a service offence is to be informed of, or
given an opportunity to make representations about, any matter;
(c)
for the keeping of written records relating to compliance with any
requirement of sections 69(3)(a) and 98 to 102 or of regulations under
paragraph (b).
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(2)
Any reference in sections 99 to 102 to a period of time is to be treated as
approximate only.
Chapter 2
Custody etc after Charge
Custody after charge
20
105
Custody after charge
(1)
Where a person (referred to in this section and sections 106 to 109 as “the
accused”) is kept in service custody after being charged with a service offence,
he must be brought before a judge advocate as soon as practicable.
(2)
At a hearing under subsection (1), the judge advocate may by order authorise
25
the keeping of the accused in service custody, but only if one or more of
conditions A to C in section 106 are met.
(3)
The period for which a judge advocate may, by an order under subsection (2),
authorise the keeping of the accused in service custody is such period, ending
not later than eight days after the day on which the order is made, as he
30
considers appropriate having regard to the evidence before him.
(4)
For the purpose of deciding whether condition A in section 106 is met, the
judge advocate must have regard to such of the following considerations as
appear to him to be relevant—
(a)
the nature and seriousness of the offence with which the accused is
35
charged (and the probable method of dealing with him for it),
(b)
the character, antecedents, associations and social ties of the accused,
(c)
the accused’s behaviour on previous occasions while charged with a
service offence and released from service custody or while on bail in
criminal proceedings, and
40
(d)
the strength of the evidence that the accused committed the offence,

as well as to any other considerations which appear to be relevant.

Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
51

(5)
If—
(a)
the accused is charged with an offence under section 42 as respects
which the corresponding offence under the law of England and Wales
is—
(i)
murder,
5
(ii)
manslaughter,
(iii)
an offence under section 1 of the Sexual Offences Act 2003 (c. 42)
(rape), or
(iv)
an attempt to commit an offence within sub-paragraph (i) or
(iii),
10
(b)
representations are made as to any of the matters mentioned in
condition A in section 106, and
(c)
the judge advocate decides not to authorise the keeping of the accused
in service custody,

the judge advocate must state the reasons for his decision and must cause those
15
reasons to be included in the record of the proceedings.
(6)
An order under subsection (2) does not authorise the keeping of the accused in
service custody—
(a)
if the accused is subsequently released from service custody, at any
time after his release; or
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(b)
at any time after he is sentenced in respect of the offence with which he
is charged.
(7)
Subsection (1) does not apply where the accused is charged with a service
offence at a time when he is kept in service custody by reason of a sentence
passed in respect of a service offence or of an order under subsection (2), unless
25
that reason ceases to apply.
106
Conditions A to D
(1)
Condition A is that the judge advocate is satisfied that there are substantial
grounds for believing that the accused, if released from service custody,
would—
30
(a)
fail to attend any hearing in the proceedings against him;
(b)
commit an offence while released; or
(c)
interfere with witnesses or otherwise obstruct the course of justice,
whether in relation to himself or any other person.
(2)
Condition B is that the judge advocate is satisfied that the accused should be
35
kept in service custody for his own protection or, if he is aged under 17, for his
own welfare or in his own interests.
(3)
Condition C is that the judge advocate is satisfied that, because of lack of time
since the accused was charged, it has not been practicable to obtain sufficient
information for the purpose of deciding whether condition A or B is met.
40
(4)
Condition D is that the accused’s case has been adjourned for inquiries or a
report and it appears to the judge advocate that it would be impracticable to
complete the inquiries or make the report without keeping the accused in
service custody.

Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
52

107
Release from custody after charge
(1)
Subsections (2) and (3) apply where, at a hearing under section 105(1), the
judge advocate does not authorise keeping the accused in service custody.
(2)
Subject to subsection (3), the accused must be released from service custody
without delay.
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(3)
The accused may be required to comply, before release or later, with such
requirements as appear to the judge advocate to be necessary—
(a)
to secure his attendance at any hearing in the proceedings against him;
(b)
to secure that he does not commit an offence while released from
custody;
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(c)
to secure that he does not interfere with witnesses or otherwise obstruct
the course of justice, whether in relation to himself or any other person;
or
(d)
for his own protection or, if he is aged under 17, for his own welfare or
in his own interests.
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(4)
On an application made—
(a)
by or on behalf of the accused, or
(b)
by the commanding officer of the accused,

any requirement imposed under subsection (3) (including such a requirement
as previously varied under this subsection) may be varied or discharged by a
20
judge advocate.
(5)
A person on whom a requirement has been imposed by virtue of subsection
(3)(a) commits an offence if, without reasonable excuse, he fails to attend any
hearing to which the requirement relates.
(6)
A person guilty of an offence under this section is liable to any punishment
25
mentioned in the Table in section 163, but any sentence of imprisonment
imposed in respect of the offence must not exceed two years.
108
Review of custody after charge
(1)
Where the keeping of the accused in service custody is authorised by an order
under section 105(2), it must be reviewed by a judge advocate not later than the
30
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 must—
(a)
release the accused from service custody; or
(b)
request a review.
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(3)
Where a request is made under subsection (2)(b), a review must be carried out
as soon as practicable.
(4)
Sections 105(2) to (6), 106 and 107 apply in relation to a review as they apply in
relation to a hearing under section 105(1); but the application of section 105(3)
is subject to subsection (7).
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(5)
At the first review the accused may support an application for release from
service custody with any argument as to fact or law (whether or not he has
advanced that argument previously).

Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
53

(6)
At subsequent reviews the judge advocate 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 judge
advocate may, if the accused consents, authorise the keeping of the accused in
service custody for a period of not more than 28 days.
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(8)
In this section “review” means a review under subsection (1).
109
Custody during proceedings of Court Martial or Service Civilian Court
(1)
In relation to a review under section 108(1) which takes place between—
(a)
the arraignment of the accused before the Court Martial or the Service
Civilian Court, and
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(b)
the conclusion of proceedings before the court,

section 105(2) to (6) (as applied by section 108(4)) apply with the following
modifications.
(2)
The reference in section 105(2) to conditions A to C is to be read as a reference
to conditions A to D.
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(3)
Where the accused is awaiting sentence—
(a)
references in section 105(4)(a) and (5) to an offence with which the
accused is charged are to be read as references to the offence for which
he is awaiting sentence; and
(b)
section 105(4)(d) does not apply.
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Arrest after charge
110
Arrest after charge or during proceedings by order of commanding officer
(1)
The commanding officer of a person who—
(a)
has been charged with, or is awaiting sentence for, a service offence,
and
25
(b)
is not in service custody,
may, if satisfied that taking that person into service custody is justified, give
orders for his arrest.
(2)
For the purposes of this section, taking a person into service custody is justified
if there are reasonable grounds for suspecting that, if not taken into service
30
custody, he would—
(a)
fail to attend any hearing in the proceedings against him;
(b)
commit an offence; or
(c)
interfere with witnesses or otherwise obstruct the course of justice,
whether in relation to himself or any other person.
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(3)
Taking a person into service custody is also justified for the purposes of this
section if—
(a)
he has failed to attend any hearing in the proceedings against him;
(b)
there are reasonable grounds for suspecting that he should be taken
into service custody for his own protection or, if he is aged under 17, for
40
his own welfare or in his own interests; or
(c)
there are reasonable grounds for suspecting that—

Armed Forces Bill
Part 4 — Custody
Chapter 3 — Custody Proceedings Rules
54

(i)
if not taken into service custody, he would fail to comply with a
requirement imposed under section 107(3); or
(ii)
he has failed to comply with such a requirement.
(4)
A person arrested under subsection (1) who is kept in service custody—
(a)
must as soon as is practicable be brought before a judge advocate for a
5
review of whether he should continue to be kept in service custody; and
(b)
on that review is to be dealt with as on a review under section 108(1)
(see sections 108(4) to (8) and 109).
(5)
Where a power of arrest is conferred on any person by virtue of this section, he
may use reasonable force, if necessary, in the exercise of the power.
10
111
Arrest during proceedings at direction of court
(1)
Where—
(a)
a person has been arraigned before the Court Martial or the Service
Civilian Court, and
(b)
proceedings before the court have not concluded,
15

a judge advocate, if satisfied that taking him into service custody is justified,
may direct the arrest of that person.
(2)
Any person with power to arrest that person for a service offence has the same
power, exercisable in the same way, to arrest him pursuant to a direction under
subsection (1).
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(3)
Subsections (2) and (3) of section 110 apply for the purposes of this section.
(4)
A person arrested under this section who is kept in service custody—
(a)
must as soon as is practicable be brought before a judge advocate for a
review of whether he should continue to be kept in service custody; and
(b)
on that review is to be dealt with as on a review under section 108(1)
25
(see sections 108(4) to (8) and 109).
Chapter 3
Custody Proceedings Rules
112
Custody proceedings rules
(1)
The Secretary of State may make rules with respect to proceedings—
30
(a)
on an application under section 101;
(b)
under section 105(1);
(c)
on an application under section 107(4);
(d)
on a review under section 108(1), 110(4), 111(4) or 170(2).
(2)
Rules under this section may in particular make provision—
35
(a)
with respect to arrangements preliminary to the proceedings;
(b)
with respect to the representation of the person to whom the
proceedings relate;
(c)
with respect to evidence, including the admissibility of evidence;
(d)
for procuring the attendance of witnesses;
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(e)
with respect to the immunities and privileges of witnesses;

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 1 — Investigation
55

(f)
with respect to oaths and affirmations;
(g)
with respect to circumstances in which a review under section 108(1),
110(4), 111(4) or 170(2) may be carried out without a hearing;
(h)
with respect to the use for the purposes of the proceedings of live
television or telephone links or similar arrangements, including the use
5
of such links or other arrangements as a means of satisfying any
requirement imposed by this Act for a person to be brought before a
judge advocate;
(i)
for the appointment of persons to discharge administrative functions
under the rules.
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Part 5
Investigation, Charging and Mode of Trial
Chapter 1
Investigation
Duties of commanding officers
15
113
CO to ensure service police aware of possibility serious offence committed
(1)
If an officer becomes aware of an allegation or circumstances within subsection
(2), he must as soon as is reasonably practicable ensure that a service police
force is aware of the matter.
(2)
An allegation is, or circumstances are, within this subsection if it or they would
20
indicate to a reasonable person that a Schedule 2 offence has or may have been
committed by a relevant person.
(3)
In subsection (2) “relevant person” means a person whose commanding officer
is the officer mentioned in subsection (1).
(4)
In this Chapter “Schedule 2 offence” means a service offence listed in Schedule
25
2.
(5)
The Secretary of State may by order amend Schedule 2.
114
CO to ensure service police aware of certain circumstances
(1)
If an officer of a prescribed description becomes aware of circumstances of a
prescribed description, he must as soon as is reasonably practicable ensure that
30
a service police force is aware of the matter.
(2)
In this section “prescribed” means prescribed by regulations under section 127.
115
Duty of CO with respect to investigation of service offences
(1)
This section applies where—
(a)
an officer becomes aware of an allegation or circumstances within
35
subsection (2); and
(b)
the officer is not required by section 113(1) or 114(1) to ensure that a
service police force is aware of the matter.

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 1 — Investigation
56

(2)
An allegation is, or circumstances are, within this subsection if it or they would
indicate to a reasonable person that a service offence has or may have been
committed by a relevant person.
(3)
In subsection (2) “relevant person” means a person whose commanding officer
is the officer mentioned in subsection (1).
5
(4)
The officer must either—
(a)
ensure that the matter is investigated in such way and to such extent as
is appropriate; or
(b)
ensure, as soon as is reasonably practicable, that a service police force
is aware of the matter.
10
(5)
Subsection (4) does not apply if the matter has already been investigated in
such way and to such extent as is appropriate.
Duty of service policeman following investigation
116
Referral of case following investigation by service or civilian police
(1)
This section applies where—
15
(a)
a service police force has investigated an allegation which indicates, or
circumstances which indicate, that a service offence has or may have
been committed; or
(b)
a UK police force or overseas police force has investigated such an
allegation or such circumstances and has referred the matter to a
20
service police force.
(2)
If—
(a)
a service policeman considers that there is sufficient evidence to charge
a person with a Schedule 2 offence, or
(b)
a service policeman considers that there is sufficient evidence to charge
25
a person with any other service offence, and is aware of circumstances
of a description prescribed by regulations under section 127 for the
purposes of this paragraph,

he must refer the case to the Director of Service Prosecutions (“the Director”).
(3)
If—
30
(a)
a service policeman considers that there is sufficient evidence to charge
a person with a service offence, and
(b)
subsection (2) does not apply,

he must refer the case to the person’s commanding officer.
(4)
If—
35
(a)
the allegation or circumstances gave rise to the duty under section
113(1) or 114(1), and
(b)
a service policeman proposes not to refer the case to the Director under
subsection (2),

he must consult the Director as soon as is reasonably practicable (and before
40
any referral of the case under subsection (3)).
(5)
For the purposes of subsections (2) and (3) there is sufficient evidence to charge
a person with an offence if, were the evidence suggesting that the person
committed the offence to be adduced in proceedings for the offence, the person
could properly be convicted.
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