Clause 73: Seizure and retention after search upon arrest

199.     This clause sets out when persons exercising a power of search may seize and retain things they find. Persons who search an arrested person on the grounds that he presents a danger to himself or others and retain things they reasonably believe the person searched may use to injure himself or others.

200.     Persons who exercise a power to search on the grounds that the arrested person may be concealing anything which might help him to escape or which might be evidence relating to an offence may seize and retain things they have reasonable grounds to believe might be used by the arrested person to escape from custody, or which are evidence of an offence or which have been obtained in consequence of the commission of an offence, unless those items are subject to legal privilege.

Clause 74: Power to make provision conferring power to search premises at which person arrested

201.     This clause enables the Secretary of State to make by statutory instrument subject to annulment an order providing for the power to enter and search premises equivalent to the provision of section 32 of PACE.

Chapter 2 - Stop and search

202.     This chapter sets out the powers available to stop and search persons and vehicles (which includes ships and aircraft for the purposes of this chapter). The powers available to service policemen are closely based on those available to constables under PACE.

Clause 75: Power of service policeman to stop and search persons, vehicles etc.

203.     This clause gives a service policeman the power to stop certain persons and vehicles in specified circumstances to search for specified things such as stolen goods or controlled drugs. The policeman may detain a person for this purpose and seize any of the specified things if he finds them. A list of definitions of words used is presented at clause 77.

Clause 76: Stop and search by persons other than service policemen

204.     This clause provides for others to have similar powers where a service policeman is not available and the authorising officer has reasonable grounds to suspect that a criminal conduct offence would be committed, or that a person who has committed such an offence would avoid apprehension, if the powers authorised could not be exercised before it would be possible to have the assistance of a service or UK civilian policeman.

205.     The range of persons who may be searched is narrower than that available to service policemen, and is limited (at subsection (2)) to those subject to service law or civilians subject to service discipline who the authorising officer or the persons searching reasonably suspect of being under the command of the authorising officer.

206.     Subsection (3) makes clear that orders may only be for the search of a particular person or vehicle, and may only be given and conducted when the ordering or authorising officer and the person searching have reasonable grounds to suspect that the circumstances at clause 75(2) exist. The authorisation may permit the detention of a person or vehicle for the purposes of the search, and seizure by the searcher of the same articles which a service policemen may seize under subsection (4)(a) to(c).

Clause 78: Places in which powers under sections 75 and 76 may be exercised

207.      This clause describes the places where powers under clauses 75 and 76 may be exercised. These include places to which the public has access, and premises used for official purposes by HM Forces excluding service living accommodation.

Clause 79: Sections 75 and 76: limitation on searching person or vehicles in certain gardens etc

208.      This clause sets out the limitations where the persons who may be searched are in certain gardens or land. These limitations apply equally to service policemen and others authorised to search stop and search by virtue of clauses 75 or 76. In relation to dwellings or service living accommodation, subsections (1) and (2) set out that a person may only be searched there if the authorising officer or service policeman has reasonable grounds to suspect he neither dwells there nor is there with permission from a person who does. Subsections (3) and (4) apply the same approach to the search of vehicles.

Clause 80: Searches under section 75 and 76: supplementary

209.      This clause requires the holding of persons for the purposes of search to be the time that is reasonably required to permit the search and places certain limitations on the search of outer garments.

Clause 81: power to make further provision about searches under sections 75 and 76

210.      This clause permits the Secretary of State to make further provision analogous to that in certain sections of PACE dealing with search.

Clause 82: Application of Chapter to ships and aircraft

211.      This clause makes clear that this chapter applies to ships and aircraft as it does to vehicles.

Chapter 3 - Powers of Entry, Search and Seizure

212.     This chapter gives powers to judge advocates (and, in limited circumstances, to COs) to authorise the entry, normally by service police, into certain premises, the search of such premises and the seizure and retention of anything in relation to which the search was authorised. The provisions are based on powers in PACE and largely re-enact those in the Armed Forces Act 2001.

Entry for purposes of obtaining evidence etc

Clause 83: Power of judge advocate to authorise entry and search

213.     This clause is based on s. 8 of PACE. It is limited to relevant residential premises and not to other premises occupied by the services. This is because COs and the service police need no statutory power to enter those other areas. A statutory power is only necessary where the person would otherwise be entitled to refuse admission to them. This is made clear in clause 95.

214.     Subsection (1) enables judge advocates, subject to being satisfied on certain matters, to issue warrants authorising the entry and search of relevant residential premises on the application of a service policeman. A warrant cannot be issued for items which are subject to legal privilege, excluded material or special procedure material (which are defined in clause 84).

215.     Subsection (2) sets out further conditions that must also be met for a warrant to be issued.

216.     Subsection (3) authorises a service policeman to seize and retain anything for which the search was authorised.

Clause 84: Section 83: definitions

217.     This clause defines terms used in clause 83.

218.     Subsection (4). The terms "items subject to legal privilege", "excluded material" and "special procedure material" have the same definitions as in PACE. Examples of excluded material include personal records (such as medical records and journalist's materials), if held in confidence. An example of special procedure material is a journalist's material not held in confidence.

Clause 85: Section 83: Power to make supplementary provision

219.     This clause enables the Secretary of State by order to make provision for the use of live television links (or similar arrangements) for hearing an application for a warrant, where for example a judge advocate might not be readily available as the applicant is overseas.

220.     The Secretary of State may also make provisions equivalent to sections 15 and 16 of PACE. These sections include safeguards relating to the issue and execution of warrants; for example, searches under a warrant must usually be made at a reasonable hour and the policeman intending to search must identify himself to the occupier. The order may make modifications to PACE provisions to ensure that the provisions work effectively within the service system.

Clause 86: Power to make provision as to access to excluded material etc

221.     This clause enables the Secretary of State by order to establish procedures to enable service policemen investigating a service offence to apply to a judge advocate for a warrant for access to excluded or special procedure material that is held in any relevant residential premises.

Clause 87: Power of CO to authorise entry and search by service policeman

222.     This clause gives COs a limited power to authorise a service policeman to search without a warrant relevant residential premises. The power may only be exercised where the conditions for obtaining a warrant under clause 83 exist and the CO has reasonable grounds for believing that it is likely that the time needed to get a warrant would result in the search being frustrated or seriously prejudiced.

223.     Subsection (4) (as read with clause 89) provides for the service policeman to seize and retain anything for which the search was authorised, subject to review by a judge advocate as soon as practicable.

Clause 88: Power of CO to authorise entry and search by other persons

224.     This clause gives the CO a similar power to that in clause 87, to authorise a member of HM Forces who is not a service policeman to conduct the search. This power can only be used to search service living accommodation. Such accommodation might include shared temporary accommodation on operations overseas or on exercise.

Clause 89: Review by judge advocate of certain searches under section 87 or 88

225.     This clause requires that where any search authorised by CO under clause 87 or 88 has resulted in anything being seized and retained, the search, seizure and retention must be reviewed by a judge advocate as soon as practicable.

226.     The clause enables the Secretary of State to make provision by order governing the powers of judge advocates in respect of these reviews.

Entry for purposes of arrest etc

Clause 90: Entry for purpose of arrest etc by a service policeman

227.     This clause sets out the circumstances in which a service policeman can, without a warrant, enter and search service living accommodation or other premises occupied by persons subject to service law or to service discipline (or reasonably believed to be such persons) to arrest a person he reasonably believes to be there at the time. The powers of entry and search extend to communal areas of premises in multi occupation, such as barrack accommodation or blocks of flats.

228.     Subsection (4) sets out additional powers for a service policeman to enter the same premises to save life or limb or prevent serious damage to property.

229.     Subsection (5) limits the power of search to what is reasonably required for the purpose for which the entry is exercised.

Clause 91: Entry for purpose of arrest etc by other persons

230.     This clause enables a CO to authorise a member of HM Forces who is not a service policeman to exercise the powers of entry for the purposes of arrest conferred on a service policeman.

231.     Subsection (3) provides that the CO must only give such authority if he has reasonable grounds for believing that waiting to get the assistance of a service or civilian policeman might result in the person to be arrested evading capture, concealing or destroying evidence or being a danger to himself or others, or result in discipline or morale being undermined.

232.     Subsection (6) provides that the CO may only give such authority for the purposes of saving life, preventing serious injury or serious damage to property if it is not practicable to get the assistance of a service policeman in time to prevent the harm occurring

233.     The functions of the CO under this clause may be delegated by in accordance with Regulations made by the Defence Council. This may, for example, allow a more junior officer to exercise the powers in an emergency in the absence of the CO.

Additional powers of entry, search and seizure

Clause 92: Power to make provision conferring powers of entry and search after arrest

234.     This clause gives the Secretary of State power to make by order provision dealing with the entry and search of premises controlled by a person arrested under clause 67 who is being held in service custody without being charged. The provision that may be made would be equivalent to that in PACE Section 18, subject to such modifications as the Secretary of State thinks appropriate for the service context.

Clause 93: Power to make provision conferring power of seizure etc

235.     This clause gives the Secretary of State power to make provision by order dealing with seizure and the power to retain property seized. The provision that may be made is equivalent to that set out in sections 19 to 21 of PACE or section 22(1) to (4) of that Act subject to subject to such modifications the Secretary of State thinks appropriate for the service context.

Chapter 4 - Supplementary

Clause 94: Property in possession of service police or CO

236.     This clause enables the Secretary of State to make provision by regulations as to the disposal of property which has come into the possession of a service policeman or a CO in connection with an investigation into a service offence. It is anticipated that the regulations will reflect provisions in the Police Property Act 1897 (as amended) which gives magistrates a wide power to make orders for the disposal of property.

237.     Regulations made under this clause may enable a service court or judge advocate either to order the return of property to the person appearing to be the owner or, if the owner cannot be found, to order its disposal as they see fit. The regulations may also allow the CO to determine to whom the property is delivered.

238.     Regulations may also establish time limits after which a decision on disposal by a service court or judge advocate could not be challenged in civil proceedings. Such limits may not be imposed where a decision on a disposal is made by a CO.

Clause 95: Saving provision

239.     This clause provides that the power of a CO or service policemen to enter and search service premises (other than service living accommodation) and service vehicles not in anybody's charge at the time are unaffected by the provisions in this Part of the Bill.

Clause 96: "Service living accommodation", "premises" and other definitions

240.     This clause defines 'service living accommodation' and 'premises'.

Clause 97: Power to use reasonable force

241.     This clause provides that any person may, if necessary, use reasonable force to effect any arrest which under the Bill he has power to make or in the exercise of other powers authorised in Part 3 which relate to entry, search and seizure.

PART 4 - CUSTODY

242.     When a person is arrested under clause 67 for a service offence and detained in custody the provisions of Part 4 of the Bill (Custody) are triggered.

243.      The custody provisions in the Bill are divided into three chapters. The provisions in the first chapter apply when a person is held in custody when he has not been charged with an offence; the second chapter applies when a person is held in custody following a charge of an offence; and the third chapter sets out a power to make rules with regard to custody.

244.      The custody provisions in the Bill are broadly similar to those currently operative under the SDAs.

Chapter 1 - Custody without charge

Clause 98: Limitations on custody without charge

245.     This provision is concerned with the limitations on custody without charge, and as with the current provisions, provides that a person who is arrested for a service offence may not be kept in custody without charge except in certain circumstances (which are described below) (subsection (1)).

246.     The clause also sets out the duties of a commanding officer in relation to a person who is held without charge under one of these exceptions (subsection (2)): if the commanding officer becomes aware that the grounds for keeping a person in custody have ceased to apply and he is not aware of any other grounds that justify the custody, he must release the arrested person.

247.     Subsection (3) provides that the only time when the commanding officer does not have to release the arrested person is if he appeared to have been unlawfully at large when he was arrested.

Clause 99: Authorisation by commanding officer of custody without charge

248.      This clause sets out the exceptions to the general principle that no person may be held in custody without charge: as with the current provisions it provides for authorisation of custody without charge by the commanding officer.

249.      The clause provides that when a person is arrested for a service offence a report must be given to the commanding officer as soon as practicable (subsection (1)). That report must state the fact of the arrest and any reasons for keeping him in custody without charging him with a service offence.

250.     Making this report to the commanding officer is a duty, however, until the report is made the arrested person may be kept in service custody without charge if the person who made the arrest has reasonable grounds for believing that to do so is necessary to secure or preserve evidence relating to the service offence for which the accused was arrested, or to obtain this evidence by questioning him (subsection (2)).

251.      Subsection (3) sets out the duties of a commanding officer upon receiving the required report. As soon as practicable the commanding officer must decide whether he has reasonable grounds for believing

• that keeping the arrested person in custody without charge is necessary to secure or preserve or obtain through questioning evidence relating to a service offence for which the person was arrested; and

• that the investigation into the alleged offence is being conducted diligently and expeditiously (see also subsection 4).

252.      If the commanding officer is satisfied of these matters he must then decide whether to authorise the continued custody of the arrested person. If the commanding officer does decide that keeping the arrested person in custody without charge is justified he may authorise continued detention for further 12 hour periods up to a maximum of 48 hours after the time of the arrest (subsections (5) and (6)).

253.      If a person who has been arrested for an offence (offence A) is kept in service custody without charge and is subsequently arrested for a further offence (offence B) the authorisation for custody in respect of offence A is terminated and the CO must go through the process again in relation to both offences A and B. Custody needs only to be justified in relation to one offence for an authorisation to be granted, but starting the process again avoids having multiple authorisations for custody in existence (subsection (7)). Any authorisation for custody without charge is valid up to 48 hours from the time of the arrest for offence A.

Clause 100: Review of custody by commanding officer

254.      As under the current provisions, this clause sets out the duties of a commanding officer who, under clause 99, has authorised the continued custody without charge of a person arrested for a service offence.

255.      Subsection (1) provides that unless the conditions detailed at subsections (3) or (4) exist, a commanding officer must review the authorisation for continued custody no later than the end of each period of custody that he has authorised. When conducting such reviews the commanding officer is under a duty to re-consider whether the original grounds for authorising custody without charge remain operative (subsection (2)).

256.      The commanding officer may postpone his review of continued custody in limited circumstances: if the circumstances that exist at the expiry of the last period of authorisation make it impracticable to conduct a review (subsection (3)); if the arrested person is being questioned and the commanding officer is satisfied that interrupting the questioning in order to conduct the review would prejudice the investigation; or the commanding officer is not readily available (subsection (4)).

257.     If a review is postponed under subsections (3) or (4) the commanding officer is under a duty to carry out the review as soon as practicable after the expiry of the last authorised period of custody (subsection (6)).

Clause 101: Extension by judge advocate of custody without charge

258.      This clause (and clause 102) is concerned with the extension of periods of custody without charge by a judge advocate. The main change from the current provisions is that the authorisation is not given by a judicial officer. This is because the creation of the standing Court Martial under the Bill means that, as with the Crown Court, the Court Martial is always in existence and so there are always judge advocates of the court who may deal with matters requiring judicial oversight (whether or not a court is seized of the matter). At present a court martial is convened on an ad hoc basis and so in the absence of a permanent court that provides judge advocates with roles and functions the concept of judicial officers was created to deal with matters requiring judicial oversight.

259.      The commanding officer of a person arrested for a service offence and held in custody without charge may apply to a judge advocate for an extension of the period of custody. The judge advocate may then authorise continued custody without charge if he is satisfied that there are reasonable grounds for believing that keeping the arrested person in custody is justified (subsection (1)).

260.     There are limitations upon a judge advocate hearing an application for extended custody from the commanding officer: the arrested person must have been informed of the reasons for the application in writing and he must be brought before the judge advocate (subsection (2)).

261.     The arrested person is entitled to legal representation at the hearing and if he is not legally represented but wants to be the judge advocate must adjourn the hearing to allow the arrested person to get legal representation (he may be kept in custody during this time) (subsection (3)).

262.      As for the commanding officer, a judge advocate may only authorise continued custody without charge if it is necessary to secure or preserve or obtain through questioning evidence relating to a service offence for which the person was arrested and the investigation is being conducted diligently and expeditiously (subsection (6)). Any such authorisation may only be for a period up to 96 hours after the original arrest, regardless of whether there was a subsequent arrest for another offence (subsections (4) and (5)).

Clause 102: Further provision about applications under section 101

263.     This clause supplements the previous clause providing more detail about extensions to custody without charge by a judge advocate.

264.      The commanding officer may make an application to a judge advocate for continued custody without charge at any time before the expiry of the first 48 hours after the person's arrest, or if it is not practicable to make the application within this time, as soon as practicable and no later than 96 hours after the arrest (subsection (1)). However, if an application is made after the initial 48 hour period and it appears to the judge advocate that it would have been reasonable for the commanding officer to make it before the expiry of that period, he must refuse the application (subsection(3)).

265.      If the commanding officer does make an application for the continued custody of an arrested person after the expiry of the initial 48 hours his review of, and authorisation for, continued custody under clause 100 may be for a period beyond the initial 48 hours, but cannot be for longer than 6 hour blocks up to a maximum period of 96 hours after the arrest (subsection (2)).

266.      Subsection 4 provides that when a commanding officer has applied to a judge advocate for the continued custody without charge of the arrested person and the judge advocate is not satisfied that there are reasonable grounds for believing that continued custody is justified he must either refuse the application or adjourn the hearing of it until a later time, but not more than 48 hours after the person's arrest (the arrested person may be kept in custody during such an adjournment, subsection (5)).

267.      If the judge advocate refuses an application for continued custody before the expiry of the initial 48 hour period he has discretion to direct that the arrested person either be charged with a service offence or be released without delay (subsection (6)).

268.      If the judge advocate refuses an application at a time after the initial 48 hour period he must direct that the person either be charged with a service offence or be released without delay (subsection (7)).

269.     All references to time periods are in relation to the first arrest if the arrested person is subsequently arrested for another offence and held in custody without charge (subsection (8)).