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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

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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

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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

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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

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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

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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.

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(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.

5

(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;

10

(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

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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

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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

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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.

5

(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

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(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,

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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)

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(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.

10

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

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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

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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

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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—

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(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—

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(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

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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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