| Armed Forces Bill - continued | House of Commons |
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Clause 5: Failure to escape etc 54. Under this clause it is an offence for service personnel who have been captured:
55. A service man or woman is not required by this clause to take steps which could not reasonably be expected, for example because of the danger involved or the person's physical condition. 56. The maximum sentence under this clause is ten years' imprisonment. Mutiny Clause 6: Mutiny 57. The essence of this offence is concerted action by service personnel to overthrow or resist the authority of those who command them or to disobey in such a way as to undermine discipline (subsection (2)). However it is sufficient for the offence to be committed if service personnel agree to do any of these things (subsection (1)). 58. The maximum penalty for mutiny is life imprisonment. Clause 7: Failure to suppress mutiny 59. Under this clause it is an offence if persons subject to service law fail to do what can reasonably be expected of them to prevent or stop a mutiny, where they know one is intended or taking place. What can reasonably be expected will depend on circumstances, such as any danger involved. The worst cases of this offence could come very close to complicity in the mutiny itself. For this reason the there is a maximum penalty of life imprisonment. Desertion and absence without leave Clause 8: Desertion 60. Under this clause desertion is committed if a person subject to service law is absent without permission and either intends:
61. It is an offence whether the person has the necessary intention at the time of going absent or develops the intention later. 62. The maximum sentence for desertion is generally two years' imprisonment. But the maximum is life imprisonment if the offender deserts when on service, or under orders to go on service, of the types described in the second bullet above, or if his intention is to avoid such service. Clause 9: Absence without leave 63. Under this clause persons subject to service law commit an offence if they are absent from service without permission. The offence may be committed through negligence or recklessness as to whether his conduct will result in such absence, or where he is intentionally absent without permission. The maximum penalty is two years' imprisonment. Clause 10: Failure to cause apprehension of deserters or absentees 64. Under this clause it is an offence if persons subject to service law fail to do what can reasonably be expected of them to cause a deserter or absentee without leave (or a person attempting to commit either of these offences) to be caught. The maximum penalty is two years' imprisonment. Insubordination Clause 11: Misconduct towards a superior officer 65. This clause deals with various types of misconduct by persons subject to service law against a superior officer. "Superior officer" means a non-commissioned officer, warrant officer or officer of senior rank to the offender or of the same rank but having authority over him (the definition is in clause 364). The misconduct which can amount to the offence is:
66. Behaviour referred to in the second bullet above includes sending threatening or disrespectful communications (such as by a note or e-mail) to a superior; and behaviour which is threatening is not limited to threats of violence. It would include, for example, a threat to damage the superior's property (subsection (3)) 67. But the offence is only committed if the alleged offender either knew or had reasonable grounds for believing that the other person was a superior officer. 68. The maximum penalty for an offence under this clause of violence or of threatening behaviour is ten years' imprisonment. For an offence of disrespectful behaviour it is two years. Clause 12: Disobedience to lawful commands 69. Obedience to lawful commands is central to service discipline. Under this clause it an offence for persons subject to service law to disobey a lawful command. A command is understood in the armed forces to mean any order apart from the routine and standing orders which are dealt with in clause 13. Accidental or even careless failure to carry out a command (in relation to carelessness by failing, for example, to consider what the order really meant) is not an offence under this clause. There is a separate offence which covers careless breaches of duty (clause 15). Under this clause an offender must intend not to carry out the order or be reckless about whether he is doing what he has been ordered to do. 70. An order must be a lawful one. An order to do something which was a crime would not be a lawful order. 71. The maximum penalty for the offence is ten years' imprisonment, which reflects the fact that obedience to some commands may be vital to the success of an operation (This may be contrasted with the maximum of two years for a breach under clause 13 of standing orders, which are more routine in character). Clause 13: Contravention of standing orders 72. Standing orders are written routine or long-lasting orders which are put in place by the services. An example is the routine orders governing conduct on a particular base. Such orders are likely to include rules on such matters as security or conduct. A breach of standing orders by a person subject to service law or a civilian subject to service discipline is an offence under this clause, but only if the member of the services or civilian subject to service discipline is aware, or could reasonably be expected to be aware, of the order in question. So, for example, a civilian member of a service family living on a military base abroad could in most circumstances be reasonably expected to know of the standing orders applicable to that base. The order itself must be a lawful one (See paragraph 68 above). 73. The maximum penalty for the offence is two years' imprisonment. Clause 14: Using force against a sentry etc 74. This clause reflects the importance of accepting the instructions of sentries and others controlling the movement of members of the armed forces, in particular sentries (whether at a post or patrolling) and those regulating traffic. Under this clause it is an offence for persons subject to service law to use force against such a person or, by threatening force, to make such a person let them pass. The maximum penalty for the offence is two years' imprisonment. Neglect of duty and misconduct Clause 15: Failure to attend for or perform duty etc 75. Under this clause it is an offence to fail to carry out a duty or to carry out a duty carelessly. The maximum penalty for the offence is two years' imprisonment. Clause 16: Malingering 76. This clause is aimed at preventing a person who is subject to service law avoiding service either by pretending to be ill or injured or by harming himself (or arranging for someone else to harm him). Such conduct is an offence under subsection (1) of this clause. Under subsection (2) it is also an offence for a person subject to service law to help another person to avoid service by harming him. The maximum penalty for an offence under this clause is two years' imprisonment. Clause 17: Disclosure of information useful to an enemy 77. Under this clause a person who is subject to service law commits an offence if he discloses to anyone information which he knows or has reasonable cause to believe may be useful to an enemy and he does not have lawful authority for the disclosure. Such authority may be specific (to make a particular disclosure) or be part of a general authority; an obvious example of authorised disclosure would be to pass necessary information or orders to those in the same command. Offences under the Official Secrets Acts 1911-89 are criminal offences within clause 42 of the Bill, and more serious offences relating to disclosure of information are more likely to be dealt with by reference to those Acts. The maximum sentence for the offence under this clause is two years' imprisonment. Clause 18: Making false records etc 78. Persons subject to service law are required to make financial and other returns and create documents on a wide range of matters. This clause deals with offences relating to improper conduct in relation to documents to be used for official purposes. Use for official purposes includes use by the armed forces themselves or by Crown servants such as Ministry of Defence officials. "Documents" are not just paper documents, but any record of information in any form, including computer records. 79. The main improper conduct covered is:
80. The offence under subsection (1) also applies to a person who does not himself make the document or entry but, with the knowledge that it is false, adopts the document. This might be by verifying, certifying or signing so as to confirm its accuracy. 81. The maximum sentence for the offence under this clause is two years' imprisonment. Clause 19: Conduct prejudicial to good order and discipline 82. Conduct which prejudices good order and discipline is an offence under this clause. The clause does not specify what mental attitude (such as intention or recklessness) is required for the offence. But the offence is the same as that under section 69 of the Army Act 1955 (and equivalent provisions of the other SDAs), and it has been decided judicially that, for the offence under that section, there will be circumstances in which conduct is only prejudicial if it accompanied by a particular state of mind (such as dishonesty or intention). 83. The maximum sentence for this offence is two years' imprisonment. Clause 20: Unfitness or misconduct through alcohol or drugs 84. This clause deals with misconduct caused by alcohol or drugs. The misconduct covered is where, because of alcohol or drugs, a person subject to service law is unfit for duty, or is guilty of conduct which is disorderly or likely to affect adversely the reputation of the armed forces. 85. "Drugs" is not limited to those drugs whose possession is unlawful. It means any drug. But an accused may raise a defence that a drug has been properly taken medicinally or taken or administered on the orders of a superior officer (that might, for example, be the case where a drug is taken as a precaution against the effects of a possible chemical or biological attack). 86. The maximum sentence for an offence under this clause is two years' imprisonment. Clause 21: Fighting or threatening behaviour etc 87. Under this clause the offences are:
88. The maximum sentence under this clause is two years' imprisonment. Clause 22: Ill-treatment of subordinates 89. This clause deals with ill-treatment of a person subject to service law by anyone who is his superior in rank or authority ("superior officer" as defined in clause 364). The ill-treatment involved covers intentional ill-treatment but also, for example, excessively harsh discipline, where the superior knows that he may be going too far and is reckless as to whether this is so. The offence applies where the superior knows or has reasonable grounds to believe that the person mistreated is his subordinate. In the case of mistreatment of other people, criminal offences (such as assault) or disciplinary offences (such as conduct to the prejudice of good order and discipline) are available. 90. The maximum sentence under this clause is 2 years' imprisonment. Clause 23: Disgraceful conduct of a cruel or indecent kind 91. Under this clause cruel or indecent conduct is an offence if the circumstances, motive or other factors make it disgraceful. For example, killing an animal may be, or involve, cruelty but the circumstances, such as obtaining food to survive, may prevent the conduct amounting to an offence. The maximum sentence under this clause is 2 years' imprisonment. Property offences Clause 24: Damage to or loss of public or service property 92. The care of government and service property and of the property of a serviceman's fellow members of the armed forces are significant disciplinary concerns. This clause deals with damage or loss caused by persons subject to service law either to public or service property or to the property of another member of the armed forces. "Public property" is defined in clauses 24 and 26 to cover tangible property of government departments and of the administrations of Scotland, Wales and Northern Ireland. Under this clause it is an offence:
93. The main difference between the treatment of public and service property on the one hand, and the property of another person subject to service law on the other are that:
94. The maximum penalty for intentional or reckless conduct within this clause is ten years' imprisonment. For careless conduct within the clause, the maximum penalty is two years' imprisonment. Clause 25: Misapplication or waste of public or service property 95. The misapplication or waste of public or service property by a person subject to service law is an offence under this clause. "Public property" and "service property" are defined in clause 26. 96. Imprisonment may not be imposed for an offence under this clause. The other penalties available to the Court Martial (set out in rows 2 to 12 of the table in clause 163) are available. They include the penalties of dismissal and service detention. Offences against service or public justice Clause 27: Obstructing or failing to assist a provost officer 97. This clause deals with obstructing and failing to assist the service police. 98. Each of the services includes a force of service police. The officers of those service police forces are called "provost officers", and are referred to as such in this clause. 99. Under this clause persons subject to service law or civilians subject to service discipline may commit an offence if they:
a service policeman carrying out his duties or a member of the armed forces acting under the authority of a service police officer (for example, an arrest under clause 67 of the Bill may be carried out by a person who is acting with a provost officer's authority). 100. To be guilty of an offence under this clause:
Clause 28: Resistance to arrest etc 101. Clause 67 (which sets out the main power of arrest under the Bill) provides for arrest to be carried out in more than one way. Broadly speaking, a person may under that clause simply be arrested or may (if he is a member of the armed forces) be ordered to regard himself as under arrest (and perhaps to report to a certain person or place accordingly). The clause covers the following misconduct:
102. The expression used in the clause ("apprehend") is to cover both an arrest (essentially for the purpose of charging an offence or to prevent an offence) and other types of lawful capture, such as of someone escaping from custody. 103. A person subject to service law, and a civilian subject to service discipline, will be guilty of a violent or threatening response to arrest or other capture only if he knows, or has reasonable grounds for believing, that the other person has a duty to apprehend him. 104. The maximum penalty under this clause is two years' imprisonment. Clause 29: Offences in relation to service custody 105. Under this clause it is an offence, where a person is in custody under the Bill:
106. The maximum penalty under this clause is two years' imprisonment. Clause 30: Allowing escape, or unlawful release, of prisoners 107. Under this clause, it is an offence for a person subject to service law:
108. If the offender intentionally allows escape, or knows that he has no authority to make the release, the maximum penalty is ten years' imprisonment. Otherwise the maximum penalty under the clause is two years. Ships and aircraft Clause 31: Hazarding of ship 109. Putting a naval vessel at risk is traditionally referred to in the Royal Navy, and in this clause, as "hazarding" a ship. In some circumstances, for example when in action against an enemy, it is inevitable that a ship will be put at risk. It may be justified to do something which is bound to damage a ship (for example by ramming an enemy) or even to destroy a ship (perhaps to avoid its capture). 110. Under this clause it is an offence:
111. If an offence under this clause is committed intentionally or recklessly, the maximum penalty is life imprisonment. If the offence is one of negligence the maximum is two years'. Clause 32: Giving false air signals etc 112. "Air signals", as defined in subsection (2) of this clause, are of great importance, as they are for the guidance of aircraft. A false signal may cause loss of life. Under this clause it is an offence:
113. There is a defence of lawful excuse, which would apply, for example, where a person has authority, or is under orders, to correct an air signal or to adjust air signalling equipment. 114. The maximum penalty under this clause is life imprisonment. Clause 33: Dangerous flying etc 115. Under this clause reckless or careless conduct by a person subject to service law when flying or otherwise in relation to aircraft or to a wide range of materials used in, on or for aircraft, is an offence if it causes, or is likely to cause, the death or serious injury of anyone. The offence does not cover such conduct if intended to cause death or injury, as this will be covered by criminal offences such as murder and attempted murder. 116. The clause is not limited to service aircraft. It applies, for example, to where a person subject to service law flies a private aircraft (perhaps for recreation). 117. The maximum penalty under the clause is life imprisonment if the misconduct is reckless, but two years, if it is careless. Clause 34: Low flying 118. The Defence Council lays down in regulations minimum heights for flying (which vary with the type of aircraft and other factors). A breach of the regulations by a person subject to service law is an offence under this clause, whether the breach is careless, reckless or intentional. The offence does not apply to take-off and landing, and to such other circumstances as the Defence Council may provide by regulations. As with clause 33, this offence is not limited to flying service aircraft. 119. In some situations, such as training, a person flying an aircraft may be under the command of another person. If the person flying an aircraft breaches a minimum height requirement on the orders of such a person, it is person in command who commits the offence (subsection (2)). 120. The maximum penalty under this clause is two years' imprisonment. Clause 35: Annoyance by flying 121. This clause is intended to prevent flying which is excessively intrusive or otherwise likely to annoy members of the public. Under the clause it is an offence if a person subject to service law's flying annoys or is likely to annoy anyone, unless he cannot reasonably avoid flying in that way. The offence is committed whether the person flying is careless, reckless or intentional. As under clause 34, if the annoying flying is caused by the orders of a person who commands the person who is actually flying, it is the person in command who commits the offence. 122. Imprisonment and dismissal with disgrace may not be imposed for an offence under this clause. The other penalties available to the Court Martial (set out in rows 3 to 12 of the table in clause 163) are available. They include the penalties of dismissal and service detention. Clause 36: Inaccurate certification 123. All the services have systems requiring service personnel to check and certify such matters as the safety and working condition of service ships or aircraft, or materials used in, on or for aircraft. Under this clause it is an offence for a person subject to service law to make or sign such a certificate without having first made sure that it is correct. The maximum sentence under this clause is two years' imprisonment. Clause 37: Prize offences by officer in command of ship or aircraft 124. During an armed conflict commanding officers are entitled to capture (as what is called "prize") most enemy ships and aircraft, and any goods in them. Under International Law they must bring the captured enemy ship, aircraft or goods to an appropriate place for a proper adjudication on whether they were lawfully taken (and are therefore "prize"). Under this clause it is an offence for a person in command of a ship or aircraft of our forces to fail unlawfully to comply with the main duties relating to prize:
125. The failure will not be unlawful, if caused, for example, by enemy action. 126. The maximum penalty under this clause is two years' imprisonment. |
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| © Parliamentary copyright 2005 | Prepared: 6 December 2005 |