Clause 38: Other prize offences

127.     Under subsection (1) of this clause it is an offence to mistreat, or unlawfully take anything from, a person on a ship or aircraft captured as prize ("prize" is explained in paragraph 123 above). It would not be unlawful, for example, to take a weapon from such a person.

128.     Under subsection (2) it is an offence to interfere in any way with goods found on a ship or aircraft taken as prize. The aim is to ensure that all goods taken reach a prize court. Accordingly the duty not to interfere does not apply if the goods are held by a prize court to have been captured lawfully. The only other exceptions to the duty not to interfere are where goods are removed for safe-keeping and where it is necessary for our or allied forces to use them.

129.     Subsection (3) deals with where a ship or aircraft is detained either under legislation permitting this or under rights under International Law where the United Kingdom is a party to an armed conflict. International Law permits the detention of foreign ships and aircraft in certain circumstances other than as prize. Under this subsection it is an offence to interfere unlawfully with goods on a detained ship or aircraft. Where interference is permitted under International Law it will also be lawful under our domestic law.

130.     The maximum penalty under this clause is two years' imprisonment.

Clause 39: Attempts

131.     Under the criminal law of England and Wales it is an offence to attempt to commit any criminal offence which can be tried by the Crown Court. This clause makes equivalent provision for attempts to commit the disciplinary and other service offences which do not reflect criminal offences under the law of England and Wales. The clause applies to those who can commit the offence attempted. This will in all cases be persons subject to service law, but in some cases (specified in subsection (4)) will also be civilians subject to service discipline.

132.     Subsections (5), (6), (7) and (8) set out particular rules as to attempts, taken from the law on attempts to commit criminal offences under the law of England and Wales.

133.     If a person is guilty of an attempt under this clause, he is liable to the same punishment as for the offence he has tried to commit (subsection (9)).

Clause 40: Incitement

134.     Under the criminal law of England and Wales it is an offence to incite someone to commit a criminal offence.

135.     Like clause 39, this clause:

• creates equivalent provision (in relation to incitement) for service offences under the Bill, other than criminal conduct offences, and

• applies to those persons who under the Bill (whether persons subject to service law or civilians subject to service discipline) can commit the offence incited.

136.     If a person is guilty of incitement under this clause, he is liable to the same punishment as for the offence incited (subsection (4)).

Clause 41: Aiding, abetting, counselling or procuring

137.     Under the criminal law of England and Wales a person who aids, abets, counsels or procures the commission of a criminal offence is guilty of that offence.

138.     Like clauses 39 and 40, this clause:

• creates equivalent provision (in relation to aiding, abetting and so on) for service offences, other than criminal conduct offences, and

• applies to those persons who can commit the offence aided, abetted etc.

139.     As under the criminal law of England and Wales, the offender may be charged, tried and punished for the offence aided, abetted etc.

Criminal conduct.

Clause 42: Criminal conduct

140.     This main effects of this clause are that:

• conduct which is criminal under the law of England and Wales is also criminal under service law (subsection (1))

• conduct which would be criminal under the law of England and Wales if committed there is also criminal under service law (subsection (1))

• the first two bullets apply to persons subject to service law and to civilians subject to service discipline (subsection (1))

• punishments of imprisonment, dismissal with disgrace, dismissal and detention may not be imposed under the Bill unless the corresponding offence under the law of England and Wales is punishable with imprisonment (subsection (3))

• the maximum fine or imprisonment that may be imposed under the Bill for a criminal offence is equated to those which civilian courts court could impose for the offence (subsection (4)).

141.     Subsection (2) provides that a person may be charged with a criminal offence under this clause even if on the same facts he could be charged with a different service offence. For example, if a soldier strikes a superior officer he may be charged under this clause with the offence of assault or he may be charged with an offence of misconduct towards a superior officer under clause 11.

Clause 43: Attempting criminal conduct

142.     An attempt to commit certain criminal offences is itself a criminal offence under the law of England and Wales. The criminal offences in question are limited by section 1(4) of the Criminal Attempts Act 1981 to ones which can be tried by a Crown Court ('indictable offences'). This clause applies section 1(4) of the 1981 Act to deciding whether under the Bill an attempt to commit criminal conduct outside England and Wales is an offence under clause 42. The effect is that, as with such conduct in England and Wales, it is an offence to attempt outside England and Wales to commit an offence under clause 42 which corresponds to an indictable offence.

Clause 44: Trial of section 42 offence of attempt

143.     Under section 4(3) of the Criminal Attempts Act 1981, where a person is charged under that Act with the offence of contempt it is a question of law whether there is sufficient evidence to find that there has been an attempt, but it is a question of fact whether what the defendant did actually amounted to an attempt (rather than a merely preparatory act). This clause makes equivalent provision where an attempt is charged under clause 42. In the case of a trial by the Court Martial the question of law

is for the judge advocate to decide. The question of fact will be for the other members of the court.

Clause 45: Conspiring to commit criminal conduct

144.     Conspiracy to commit a disciplinary offence is not an offence under the existing legislation or under the Bill. Conspiracy to commit a criminal offence is an offence under the law of England and Wales. Under clause 42 it is therefore an offence to conspire outside England and Wales to commit a crime in England or Wales. Clause 45 applies the legislation governing conspiracy with modifications necessary to include within clause 42 conspiracies to commit criminal conduct outside England and Wales.

Clause 46: Inciting criminal conduct

145.     This clause makes provision similar in effect to clause 45, but in relation to the offence of inciting a criminal offence. Incitement outside England and Wales to commit a crime in England or Wales is an offence under clause 42. Clause 46 in effect extends clause 42 to incitement to commit a criminal offence outside England and Wales.

Clause 47: Aiding, abetting counselling or procuring criminal conduct

146.     This clause makes provision similar in effect to clause 45, but in relation to aiding, abetting, counselling or procuring the commission of a criminal offence. Clause 46 in effect extends clause 42 to aiding, abetting, counselling or procuring the commission of a criminal offence outside England and Wales.

Clause 48: Provision supplementary to sections 43 to 46

147.     Clauses 43, 45, 46 and 47 provide, broadly speaking, that attempting, conspiring, inciting, aiding, abetting, counselling or procuring conduct outside England and Wales which would be criminal in England and Wales is an offence under clause 42. Clause 48 makes supplementary provision so that such conduct also counts as if it were an offence committed in England and Wales for other purposes of the Bill, in particular for working out the maximum punishments applicable.

Clause 49: Air navigation order offences

148.     The Air Navigation Order, made under section 60 of the Civil Aviation Act 1982, creates offences of misconduct on civil aircraft. These offences are triable in England and Wales if committed on an aircraft in flight, even outside British air space. However, they do not apply to military aircraft.

149.     This clause enables the Secretary of State to designate specified offences under the Air Navigation Order, and ensures that, if a person subject to service law or a civilian subject to service discipline does something in a military aircraft which would amount to a designated offence if the aircraft were a civil aircraft, he will be guilty of the offence under clause 42.

PART 2 - JURISDICTION AND TIME LIMITS

Chapter 1 - Jurisdiction

Court Martial

Clause 50: Jurisdiction of the Court Martial

150.     All offences under service law (defined by this clause as "service offences") may be tried by the Court Martial.

151.     Subsection (2) lists all 'service offences'.

Service Civilian Court

Clause 51: Jurisdiction of the Service Civilian Court

152.     Clause 276 creates the Service Civilian Court. This clause sets out the civilians and offences as respects which the court has jurisdiction. The court replaces the Standing Civilian Court that was created by provisions contained in the Armed Forces Act 1976.

153.     Subsection (1) provides that the court may try any service offence (as defined in clause 50) committed outside the British Islands by a civilian except for those offences listed in subsection (2) or an offence in relation to which subsection (4) applies.

154.     Subsection (2) lists the offences over which the Court does not have jurisdiction the most significant of which is any offence which under the law of England and Wales can be tried only on indictment, that is, only by the Crown Court.

155.     Subsection (4) applies in relation to offences where the defendent is for the time being a member of the regular or reserve forces or liable to recall (as defined in subsection 5) and excludes them from the jurisdiction of the court.

Commanding Officers

156.     Subject to certain safeguards, COs can hear some charges summarily (at a 'summary hearing'), determine whether a charge is proved and award punishment(s) if a charge is found proved. No provision is made for civilians subject to service discipline to be dealt with summarily.

157.     Clauses 52-54 concern the charges that may be heard summarily by the CO (including some that can be dealt with only by special permission from higher authority or, without permission, only by senior officers). Parts 5 and 6 of the Bill make provision for a CO to bring a charge against a person, his powers after charge and the conduct of summary hearings (including punishments available to the CO).

Clause 52: Charges capable of being heard summarily

158.     This clause defines charges that are capable of being heard summarily by reference to 3 conditions (Conditions A to C), which have to be satisfied. These conditions are set out in subsections (2) to (4) and relate to the offence, the rank of the accused person and (for most offences) whether from the time of the alleged offence to the end of the summary hearing of the charge the accused person is subject to service law, or a member of volunteer reserve force or a member of an ex-regular reserve force subject to an additional duties commitment.

Clause 53: Offences that may be dealt with at a summary hearing

159.     Subsection (1) lists the offences under this Bill and other Acts capable of being dealt with at a summary hearing.

160.     Subsection (2) provides that, with one exception provided for in subsection (3), attempts to commit these offences are also capable of being dealt with summarily.

161.     Subsection (3), provides that the criminal conduct offences specified in Schedule 1 may be heard summarily and include attempts to commit such criminal conduct offences.

162.     Subsection (4) gives the Secretary of State power to amend Schedule 1 by order made by statutory instrument which is subject to the "affirmative resolution" procedure which requires the order to be laid in draft before both Houses of Parliament and be approved by resolution of each House.

Clause 54: Charges that may be heard summarily only with permission or by senior officer

163.     This clause provides that an officer cannot hear summarily a charge in respect of the criminal conduct offences listed in part 2 of Schedule 1 unless he has obtained permission of higher authority or he is of or above the rank of rear admiral, major-general or air vice-marshal.

Chapter 2 - Time Limits

164.     Clauses 55 to 61 prescribe the time limits which apply for bringing charges under the Bill. Clause 61 provides for any time limits to be disregarded if the Attorney General gives his consent to charges being brought.

Clause 55: Time limit for charging former member of regular or reserve force

165.     This clause provides that a person who has ceased to be a member of the regular or reserve forces may not be charged with a service offence (allegedly committed whilst he was a member of the relevant force), after the end of a six month period. The six month period is calculated from the date on which he ceased to be a member of the relevant force. This time limit applies even if the person re-joins either the regular or reserve force during the six month period.

Clause 56: Time limit for charging certain members or former members of ex-regular reserve forces

166.     This clause provides that a member of an ex-regular reserve force who undertakes an "additional duties commitment" (which is defined in clause 364), may be charged with a service offence allegedly committed during the period of that commitment only within six months of the end of that commitment.

Clause 57: Time limit for charging person formerly subject to service law

167.     This clause provides that a person who has ceased to be subject to service law (as provided for by clauses 357 and 358) may not be charged with a service offence allegedly committed while subject to service law after the end of a six months period. The six months period is calculated from the date on which he ceased to be subject to service law. This time limit applies even if the person again becomes subject to service law within this six month period.

Clause 58: Time limit for charging civilian formerly subject to service discipline

168.      This clause provides that a person who has ceased to be a civilian subject to service discipline may not be charged with a service offence alleged to have been committed while he was subject to service discipline after the end of a six months period. The six months period is calculated from the date on which he ceased to be subject to service discipline. This provision applies even if the person becomes a civilian subject to service discipline again within that six month period.

169.      However, subsection (3) provides that where a civilian who was subject to service discipline becomes subject to service law, the provisions of clause 57 are to read so as to apply to him.

170.      Subsections (5) and (6) provide that a person who is subject to service discipline and who would otherwise cease to be so subject simply because he has left a designated area, shall for the purposes of this clause be treated as being subject to service discipline if he is still residing or staying in that designated area.

Clause 59: Time limit for charging offence under section 107

171.     This clause provides that a person may not be charged with an offence contrary to clause 107 (breach of requirement imposed on release from custody) either after six months has elapsed since the commission of the offence, or after two months has elapsed from the date when the accused person is apprehended, whichever event is the later.

Clause 60: Time limit for charging offences under section 265

172.     This clause provides that a person may not be charged with an offence contrary to clause 265 (failure to comply with a financial statement order) either after two years has elapsed since the commission of the offence, or after six months has elapsed from the date that the Director of Service Prosecutions becomes aware of the offence, whichever event is the earlier in time.

Clause 61: Sections 55 to 60: exception and interpretation

173.     This clause provides that notwithstanding the time limits imposed by clauses 55 to 58, a person can be charged with a service offence at any time with the consent of the Attorney General. This clause also provides that the provisions of clauses 55 to 60 do not apply in relation to Reserve Forces Act offences (as defined in the following clause).

Time limit for Reserve Forces Act offences

Clause 62: Time limit for charging Reserve Forces Act offences

174.     This clause sets out the time limits for charging a person under the Bill with an offence under sections 95 to 97 of the Reserve Forces Act 1996.

175.     Subsection (3) defines terms used in this clause and provides, amongst other things, that a relevant reservist means a member of a volunteer reserve force, or a member of an ex-regular reserve force who was in full-time reserve service or subject to an additional duties commitment.

Chapter 3 - Double Jeopardy

176.     This chapter provides for the effect of acquittals and convictions by the Court Martial and the Service Civilian Court and at summary hearings in barring further proceedings under the Bill or in civilian courts in the UK and vice versa. The double jeopardy rules give equivalent protection to that enjoyed by civilians under the ordinary criminal law from being dealt with twice for the same or substantially the same offence.

Clause 63: Service proceedings barring subsequent service proceedings

177.     Subsection (1) applies the clause to persons who have been convicted or acquitted of a service offence or had such an offence taken into consideration on sentencing.

178.     Subsection (2) bars the Court Martial from trying the person for another offence (offence B) which is the same offence in law as the one for which he has already been convicted if the alleged facts are the same or substantially the same as those on which the charge for the original offence (offence A) was based.

179.     Subsection (3) describes other ways in which the second offence may be related to the original offence for the barring of further proceedings under the Bill.

180.     Subsection (5) bars further proceedings being tried instead in the Service Civilian Court or being heard summarily by an officer if they cannot be tried by the Court Martial.

Clause 64: Service proceedings barring subsequent civilian proceedings

181.     Subsection (1) applies the clause to persons who have been convicted or acquitted of a criminal conduct offence (defined in clause 42) or had such an offence taken into consideration on sentencing.

182.     Subsections (2) to (6) bar a civilian court in the United Kingdom or the Isle of Man from trying the person for any offence that it could not try him for had he been convicted or acquitted by a court in England and Wales of the offence under the law of England and Wales corresponding to the criminal conduct offence.

Clause 65: Sections 63 and 64: supplementary

183.     This clause provides for the application of clauses 63 and 64 where the DSP makes a direction under clause 126 barring future proceedings.

Clause 66: Civilian proceedings barring subsequent service proceedings

184.     This clause makes provision barring service proceedings for a service offence where a civilian court would be barred by civil double jeopardy rules from trying the corresponding offence under the law of England and Wales.

PART 3 - POWERS OF ARREST, SEARCH AND ENTRY

Chapter 1 - Arrest etc

Powers of arrest

Clause 67: Power of arrest for service offence

185.     This clause sets out the powers of arrest when it is reasonably suspected that a service offence has been, or is being, committed. It describes who may be arrested and who can exercise the power of arrest. The person making the arrest, or who orders someone else to arrest on his behalf, must reasonably suspect the person to be arrested of being engaged in committing or having committed a service offence.

186.     A service policeman may arrest any persons subject to service law, irrespective of rank and civilians subject to service discipline.

187.     Officers, warrant officers or NCOs who are not service policeman may arrest persons of inferior rank subject to service law, and officers may arrest civilians subject to service discipline. Officers may also arrest other officers of any rank if they are engaged in a mutiny (see clause 6).

188.     Persons who are not service policemen but who are lawfully exercising authority on behalf of a provost officer may arrest persons subject to law and civilians subject to service discipline.

189.     In the maritime environment persons on the staff of the officer of the day (duty officer), may arrest members of a ship's company or embarked force.

Clause 68: Section 67: supplementary

190.     This clause makes supplementary provisions relating to the powers of arrest.

191.     Subsection (2) ensures that clause 67(3) will apply to former members of HM forces. Such a person will be treated for the purposes of clause 67(3) as being of the rank or rate they held when last a member of the forces.

192.     Subsection (3) ensures that clause 67(4) will apply to a person who is no longer a civilian subject to service discipline but who is suspected of having committed an offence while a civilian subject to service discipline.

193.     Subsection (4) ensures that it is a service policeman who must arrest a person in respect of an offence where the consent of the Attorney General is necessary under clause 61 to charge the person with that offence.

Clause 69: Power of arrest in anticipation of commission of service offence

194.     This clause permits a service policeman to arrest a person he reasonably suspects of being about to commit a service offence.

Search on arrest

Clause 70: Search by service policeman upon arrest

195.     This clause permits a service policeman to search an arrested person who he has reasonable grounds to believe may present a danger to himself or others or who may be concealing anything which might help him escape or (in the case of an arrest under clause 67 or 69) which might be evidence relating to a service offence.

Clause 71: Search by other persons upon arrest

196.     This clause allows a person (other than a service policeman) who is exercising a power of arrest to search an arrested person who he has reasonable grounds to believe may present a danger to himself or others.

197.     It further allows a person other than a service policeman to search an arrested person for anything that the arrested person might use to help him escape or which might be evidence relating to an offence on the direction of the arrested person's CO. The CO can only direct such a search if the assistance of a service policeman or civilian policeman cannot be obtained, and the CO has reasonable grounds to believe that if the search is delayed the arrested person would escape or conceal or damage evidence.

Clause 72: Sections 70 and 71: supplementary

198.     This clause provides that a person exercising a power to search under clauses 70(2) or 71(4) may search an arrested person only to the extent reasonably required to discover anything which might help him escape from custody or which might be evidence relating to a service offence. The search powers may not be used to require an arrested person to remove any clothing in public other than outer clothing, but the search of the person's mouth is allowed.