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Session 2005 - 06
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|Armed Forces Bill
These notes refer to the Armed Forces Bill as introduced in the House of Commons on 30th November 2005 [Bill 94]
ARMED FORCES BILL
1. These explanatory notes relate to the Armed Forces Bill as introduced in the House of Commons on 30 November 2005. They have been prepared by the Ministry of Defence (MOD) in order to assist the reader in understanding the Bill. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So, where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. There is an explanation of the background to the Bill in paragraphs 5 to 15. The Bill comprises a number of parts, grouped into main subject areas. Paragraphs 16 to 40 give an overview of the Bill, its structure and the key elements of each part. The main areas are introduced and described separately in the commentary.
4. Terms used in the Bill are explained in these notes where they first appear and a glossary of terms is at Annex A. A table of comparative ranks of members of each of the three services is at Annex B.
5. The Royal Navy, the Army and the Royal Air Force operate within separate statutory frameworks of discipline which apply at all times wherever in the world members of each service are serving. The respective bases for these systems are the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. Collectively they are known as the Service Discipline Acts (SDAs). The SDAs are concerned largely, but not exclusively, with discipline.
6. Although each of the services has its own system, the general structure of these systems and many of their details are very similar. They all make provision so that members of the services can be investigated, tried and punished for any criminal offence under the law of England and Wales, wherever in the world it is committed. These are referred to in these notes as criminal conduct offences. Each of the three service systems also provides for some offences which are peculiar to service in the
[Bill 94-EN] 54/1
armed forces. These offences mainly relate to discipline, for example insubordination and disobedience to lawful commands. They are referred to in these notes as disciplinary offences.
7. A Commanding Officer (CO) has a central role in maintaining discipline and every member of the armed forces has a CO for disciplinary purposes. Accordingly COs in all the services have defined disciplinary powers to deal with certain disciplinary and criminal conduct offences.
8. A CO's powers of punishment are very restricted, but there are differences between the services in the range of offences with which a CO may deal summarily and his or her powers of punishment. Each of the services' systems provides an accused person with a right of election for trial by court martial instead and for appeal from the finding and punishment of a CO to a Summary Appeal Court, comprising a civilian judge (called a "judge advocate") and two members, of which one must be an officer.
9. The detailed provisions about courts-martial also vary between the services, but key aspects are the same. The decision to bring a prosecution at court martial rests with the Prosecuting Authority of each service. The Prosecuting Authority is a legally qualified officer appointed by HM Queen and is independent of the chain of command. There are differences between the services in the structure and membership of courts-martial, but all courts-martial have a civilian judge advocate and not less than three service members. These will be officers or warrant officers (though there are further rules about the ranks of those who may sit). The Army and RAF systems distinguish between "district" and "general" courts-martial. General courts-martial must have at least five service members (as well as the judge advocate). Naval courts-martial and Army and RAF general courts-martial have sentencing powers which are similar to those of the Crown Court in England and Wales. However, some of the sentencing powers available to a court martial are peculiar to the service systems, such as detention served in a military establishment, reduction in rank and dismissal. The procedures of all courts-martial are broadly similar to those of the Crown Court. There is a right of appeal against conviction and sentence to the Courts-Martial Appeal Court. This court comprises civilian judges from the Court of Appeal (Criminal Division).
10. Some civilians are also subject to one or other of the SDAs when overseas. These include the families of armed forces personnel living with them abroad and certain contractors working with the armed forces. There are only very limited powers to deal with civilians summarily. In Germany and Cyprus, where the armed forces have large permanent bases with a significant civilian population, there is a Standing Civilian Court, which has equivalent powers to a magistrates' court in England and Wales and is presided over by a civilian judge advocate. Or civilians may be tried by court martial, in which case one or more civilian Crown servants may be a member of the court (depending on the type of court martial).
11. Judge advocates are appointed as such by the Lord Chancellor but allocated to individual trials by the Judge Advocate General (for Army and RAF trials) or the Judge Advocate of the Fleet (for Royal Navy trials). The holders of these offices are appointed by HM the Queen on the recommendation of the Lord Chancellor. They must be a barrister, solicitor or advocate of at least 10 years' standing.
12. Each of the services includes a force of police (referred to in these notes as "service police"). One of their functions is to investigate alleged offences under the SDAs. Broadly speaking, their powers are exercisable on a tri-service basis; that is, they may exercise their powers in relation to anyone subject to any of the SDAs.
Other provisions in the SDAs
13. The SDAs also contain provisions on other matters including recruitment to and discharge from the armed forces, the redress of complaints and armed forces' boards of inquiry.
Renewal of Service Law
14. Since 1955 the Army and Air Force Acts (and, since 1971, the Naval Discipline Act) have been subject to renewal by primary legislation every five years and, in each of the intervening years, by an Order in Council approved in draft by both Houses of Parliament. This requirement for Parliamentary agreement for their continuation has its origins in the Bill of Rights 1688, which provides that the raising of a standing army is against the law unless Parliament consents to it. Since the 1950s the five-yearly Bills have been used primarily to make necessary and desirable amendments to the SDAs, often to reflect changes in the civilian criminal law of England and Wales. The last Armed Forces Act was passed in 2001.
The Strategic Defence Review 1988
15. The Ministry of Defence Strategic Defence Review 1998 1 recognised the future importance of joint operations by the armed forces and put "jointery" at the centre of the defence planning process. It also concluded that combining the three SDAs into a single Act, and reducing the differences between the systems to the absolute minimum, would better support the armed forces that increasingly train and operate jointly. The Bill is the result of a comprehensive review of all the existing provisions in the SDAs, but has extended to other legislation that relates to discipline in the armed forces such as the Courts-Martial (Appeals) Acts 1951 and the Courts-Martial (Appeals) Act 1968 ('the 1968 Act') and a number of free standing provisions in the five-yearly Armed Forces Acts, for example, the provisions for Standing Civilian Courts in the Armed Forces Act 1976 and the powers of service police under the Armed Forces Act 2001.
1 CM 3999, http://www.mod.uk/issues/sdr/index.htm
OVERVIEW OF THE BILL
16. The main purpose of the Bill therefore is to replace the three separate systems of service law with a single, harmonised system governing all members of the armed forces. The key elements of the discipline systems will remain, in particular a jurisdiction for COs to deal with less serious offences, with more serious offences being required to be tried by court martial. Accordingly it should not be assumed that the provisions of the Bill are new, most of it is based on existing provisions, but updated, and modified to achieve harmonisation between the Services.
17. In brief, the Bill creates offences and provides for the investigation of alleged offences, the arrest, holding in custody and charging of individuals accused of committing an offence and for them to be dealt with summarily by the CO or tried by court martial. Instead of (as at present) courts-martial being set up to deal with particular cases, a standing court martial is provided for in the Bill, called the Court Martial. This does not mean a single court that deals with all cases, but rather like the Crown Court it may sit in more than one place at the same time.
18. More serious cases must be notified to the service police and passed direct to the independent Director of Service Prosecutions ("DSP") for a decision on whether to prosecute. In other cases the CO will consider whether to deal with the matter summarily or to refer the case to the DSP with a view to proceeding to a trial by the Court Martial. In all cases that are tried by the Court Martial, the DSP takes the decision to prosecute and determines the charge(s). Those charged with offences under the Bill that the CO intends to deal with summarily have a right to elect trial by the Court Martial and to appeal the outcome of a summary hearing to the Summary Appeal Court or the outcome of a court martial to the Court Martial Appeal Court.
19. The Bill provides for certain offices and organisations which are currently single-service to be replaced by a tri-Service equivalent. The aim is to enhance efficiency and to support consistency in the application of the Bill. These are:
20. The Bill contains a number of key provisions. Briefly these are:
STRUCTURE OF THE BILL
21. The Bill is in 19 Parts which are divided into three groups dealing with discipline, miscellaneous and general matters respectively. Paragraphs 22 to 40 below list the main matters covered in each Part.
First Group of Parts: Discipline
22. Part 1. Offences. This Part sets out most service offences. (There are a few offences in other Parts of the Bill and in other Acts.)
23. Part 2. Jurisdiction and time limits. This Part defines the jurisdiction of COs, the Court Martial and the Service Civilian Court. It lays down time limits for prosecution under the Bill. It also provides for the effect of proceedings under service law on further service or civilian proceedings.
24. Part 3. Powers of arrest, search and entry. This Part defines the powers of arrest in relation to service offences. It also defines powers to search arrested persons, to stop and search persons and vehicles, and to enter premises for the purpose of search and seizure. For the most part, these powers are to be exercised by the service police.
25. Part 4. Custody. This Part sets out the regime governing the holding in custody (before or after charge) of a person arrested under the Bill. It covers such matters as time limits for custody and review of custody. The requirements include review of that custody by a judge advocate.
26. Part 5. Investigation, charging and mode of trial. This Part sets out the duties of COs in respect of the investigation of service offences and the involvement of the service police. It also provides for the powers of the CO and the Director of Service Prosecutions in determining charges, for charging service offences, and for the allocation of charges for summary hearing or for trial by the Court Martial.
27. Part 6. Summary hearing and appeals and review. This Part provides a right for the accused to elect trial by the Court Martial instead of being dealt with summarily by the CO. It sets out the punishments that a CO may award summarily. It gives a right of appeal against both the finding and punishment at a summary hearing and provides for a separate review of the CO's decisions with a power of the reviewer to refer the matter to the Summary Appeal Court. It establishes a single Summary Appeal Court for the Services and sets out its procedures and sentencing powers.
28. Part 7. Trial by the Court Martial. This Part establishes the Court Martial and provides for its constitution, proceedings and powers in respect of finding and sentence. It provides powers to deal with accused persons who are unfit to stand trial or who are found to be not guilty by reason of insanity.
29. Part 8. Sentencing powers and mandatory etc sentences. This Part creates certain non-custodial orders unique to the armed forces, such as overseas community orders, and makes provisions for their review and for their transfer to certain other jurisdictions. It provides for consecutive and suspended sentences and applies, with modifications, provisions in the Criminal Justice Act 2003 (the 2003 Act) relating to imprisonment for adults, custodial sentences for young offenders and mandatory sentences for certain offences.
30. Part 9. Sentencing: principles and procedures. This Part contains principles corresponding to the general sentencing principles in the 2003 Act in relation to deciding sentences for service offences. It makes a number of provisions for the Court Martial and the Service Civilian Court relating to sentencing, in particular about pre-sentence reports (within the meaning of the 2003 Act) and financial and community punishments.
31. Part 10. Court Martial decisions, appeals and review. This Part renames the Courts-Martial Appeal Court as the Court Martial Appeal Court (CMAC), and comprehensively amends the 1968 Act. It makes provision for the Attorney General to refer to the CMAC sentences passed by the Court Martial which he considers unduly lenient. It also provides for the Attorney or the offender to refer to the Supreme Court, with leave, a point of law involved in any sentence passed on the offender by the Court Martial. It also creates a regime for compensation for miscarriages of justice.
32. Part 11. The Service Civilian Court. This part establishes the Service Civilian Court. The jurisdiction of the Service Civilian Court is provided for in Part 2. Part 11 provides for the court to sit anywhere outside the British Islands, and for its constitution, proceedings and powers in respect of finding and sentence. It sets out the right of an accused to elect trial by the Court Martial, and to appeal to the Court Martial against a finding or sentence of the court.
33. Part 12. Service and effect of certain sentences. This Part makes provision for the commencement of sentences and their effect on the offender in various respects, such as his rank. It provides for a sentence of service detention, but not one of imprisonment, to be served in a service establishment. It provides a power to make rules about service custody (both before and after sentence).
34. Part 13. Discipline: miscellaneous. This Part provides for a number of miscellaneous matters relating to discipline, including:
Second Group of Parts: Miscellaneous Matters
35. Part 14. Enlistment, Terms of Service etc. This Part deals with a number of matters broadly relating to enlistment and terms of service. Among other provisions it gives the Defence Council powers to make regulations governing the enlistment of persons into the regular forces and their service in and discharge from those forces. It also provides a system for persons subject to service law to apply for redress of grievances in relation to his service.
36. Part 15. Forfeitures and deductions. This Part gives the Secretary of State power to make regulations for the purpose of making forfeitures and deductions from service pay for specified purposes.
37. Part 16. Inquiries. This Part gives the Secretary of State power to make regulations for internal service inquiries to investigate and report on matters referred to them.
38. Part 17. Miscellaneous. This Part makes provision about a number of discrete matters. The matters include exemption of the Services from tolls and charges, powers to admit to a Service hospital persons outside the United Kingdom who are suffering from mental disorder and provision making ineffective assignments of, or charges against, armed forces pay or pensions.
Third Group of Parts: General
39. Part 18. Commanding Officer and other persons with functions under Act. This Part provides in particular for the identification of a person's CO and who is higher authority in relation to a CO. It provides for the appointment of the Director of Service Prosecutions and the qualifications required for that appointment.
40. Part 19. Supplementary. This Part defines the persons who are subject to service law and the civilians who are subject to service discipline. It contains supplementary provisions, and definitions applying throughout the Bill. It provides for commencement, expiry and territorial scope. It also provides in practice for the need to renew the legislation by a further Act of Parliament by providing that the Bill ceases to have effect five years from enactment.
FIRST GROUP OF PARTS - DISCIPLINE
PART 1 - OFFENCES
41. This Part set out the offences which may be committed under service law. Except in one case (clause 49, Air Navigation Order offences) they are all revised versions of existing offences under the SDAs. The disciplinary offences under this Part may only be committed by members of the regular and reserve forces (or certain civilians - see the following paragraph). Moreover they can only do so while they are subject to service law; so a member of the reserves (such as the Territorial Army) can only commit offences under the Bill while he is with the forces. Accordingly, where the notes below on the clauses defining offences refer to an offence being committed
by a person subject to service law, it is to be born in mind that this means in every case service personnel who are subject to service law.
42. A few of these offences may also be committed by civilians subject to service discipline (defined in clause 360). The offences which may be committed by such civilians are identified below.
Assisting an Enemy, misconduct in action etc
Clause 1: Assisting an enemy
43. Under this clause it is an offence for a person subject to service law to assist an enemy intentionally in any of a number of specified ways, such as communicating with an enemy or giving them supplies. Subsection (2) deals with service personnel who have been captured by the enemy. Helping the enemy in their war effort is the main way in which an offence under subsection (2) is committed. The assistance given to an enemy under this clause must be intentional. There is also a defence of lawful excuse; for example service personnel might be ordered to communicate with an enemy in order to deceive them. The maximum penalty is life imprisonment.
44. "Enemy" has a wide definition in clause 364. It includes enemy troops but also, for example, armed mutineers or rioters.
Clause 2: Misconduct on operations
45. When persons subject to service law are taking part, or under orders to take part, in operations against an enemy certain misconduct may be more serious than in other circumstances. Under this clause service personnel are guilty of an offence if in such circumstances they commit specified types of misconduct. These are:
46. In most cases no offence is committed if the person has a reasonable excuse for his actions.
47. The maximum penalty under this clause is life imprisonment.
Clause 3: Obstructing operations
48. Under this clause persons subject to service law are guilty of an offence if they
49. But there may be a good military reason for deciding to delay, or even for discouraging an operation, for example because of likely adverse weather conditions or expected enemy strength. Accordingly such conduct is not an offence if there is a lawful excuse for it.
50. If an offence under this clause relates to an action or operation against an enemy, the maximum penalty is life imprisonment; otherwise the maximum is ten years.
Clause 4: Looting
51. Under this clause service personnel and civilians subject to service discipline may be guilty of looting. The offence recognises the possibility that armed conflicts, natural disasters and other situations in which service personnel may be operating leave people and property unprotected, and give troops opportunities to take advantage of this. The clause covers three main types of looting:
52. But it is not looting to take things for the public service (for example taking ammunition or vehicles for use in combat) which an enemy has abandoned.
53. For an offence referred to in either of the first two bullets in paragraph 49 above, the maximum penalty is life imprisonment. For a case within the third bullet the maximum is seven years.
|© Parliamentary copyright 2005
|Prepared: 6 December 2005