House of Commons - Explanatory Note
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Clause 103: Custody with charge other cases

270.      This clause (as with its current counterparts) sets the circumstances in which the foregoing provisions of clauses 98 to 102 are to apply other than when a person has been arrested under clause 67, namely when a person is transferred to service custody following an arrest by the civilian police pursuant to certain provisions of the Bill or in any other case where a person who is arrested by an officer of a UK or British overseas territory police force is transferred into service custody.

Clause 104: Custody without charge: supplementary

271.      This clause provides that the Secretary of State may make provision by regulations that provide for further matters concerned with custody without charge.

Chapter 2 - Custody etc after charge

Custody after charge

272.     This Chapter deals with post-charge custody, in which case an accused person is to be brought before a judge advocate as soon as practicable.

Clause 105: Custody after charge

273.      This clause, as with the others in this chapter, now refers to the arrested person as "the accused" because he has now been charged with a service offence. As with clause 101, the main difference from the current provisions is that an accused person must be brought before a judge advocate, rather than a judicial officer, as soon as practicable (subsection (1)). The two exceptions to this general rule are if the accused is already in service custody for the purposes of serving a sentence or following a previous authorisation for custody by a judge advocate regarding another charge (whilst these grounds continue to apply) (subsection (7)).

274.      When an accused is brought before the judge advocate for a hearing the judge advocate must decide whether the accused should be released (possibly subject to conditions) or be kept in service custody. The judge advocate is permitted to authorise keeping the accused in service custody only if the at least one of three conditions A to C set out in the following clause is satisfied.

275.     In coming to his decision on whether the conditions are met the judge advocate is under a duty to take into account any of the matters specified in subsection (4) that he thinks are relevant to the accused's case. If the judge advocate does consider that one or more of the conditions is met he may authorise keeping the accused in service custody for up to 8 days from the date of the hearing (subsections (2) and (3)). However, this authorisation does not allow the accused to be kept in custody if he is subsequently released or sentenced (subsection (6)).

276.      If the judge advocate, having heard representations in respect of condition A in the following clause, decides not to authorise the continued custody of the accused and the offence with which the accused is charged is murder, manslaughter, rape or attempted murder or rape, the judge advocate must state the reasons for his decision and ensure that they are properly recorded (subsection (5)).

Clause 106: Conditions A to D

277.      This clause sets out conditions A to C that the judge advocate must consider when deciding whether to authorise keeping the accused in custody under clause 105; additionally there is a further condition D that applies when a judge advocate is considering whether to remand an accused into service custody during court proceedings.

278.      Condition A is that the judge advocate is satisfied that if he released the accused he would fail to attend any court hearing in relation to the offence, or commit another offence whilst released, or interfere with witnesses or obstruct the course of justice.

279.     Condition B is when the judge advocate is satisfied that custody is necessary for the accused's own protection or, if the accused is under 17 years old, for his own welfare or interests.

280.     Condition C allows the judge advocate to authorise custody if he is satisfied that there has not been enough time to gather information with regard to conditions A or B between charge and the court appearance.

281.     Condition D is when, following court proceedings, the accused's case has been adjourned so that inquiries or a report can be made and the judge advocate is satisfied that the inquiries or report could not be made unless the accused is in custody.

Clause 107: Release from custody after charge

282.      This clause is concerned with the situation where the judge advocate decides that custody is not appropriate. This is equivalent to the grant of bail in the civilian system. If the judge advocate does not authorise custody under clause 105 the accused must be released (subsection (2)); however, that release may be subject to conditions if the judge advocate considers them to be necessary for specified purposes (subsection (3)).

283.     If the judge advocate does impose conditions upon the release of the accused those conditions may be varied or removed after an application from the accused or his commanding officer (subsection (4)).

284.     If the accused has been released subject to conditions and then fails without a reasonable excuse to attend any hearing to which the condition relates, he has committed an offence and is liable to be punished up to a maximum of 2 years' imprisonment (subsections (5) and (6)).

Clause 108: Review of custody after charge

285.      This clause is concerned with the situation where a judge advocate did authorise keeping the accused in custody under clause 105 and sets out various matters to do with reviewing the continued custody of the accused.

286.      If a judge advocate has authorised custody a review must be carried out by a judge advocate (not necessarily the same one) no later than the end of the authorised period (subsection (1)). However, if at any time the accused's commanding officer considers that the reasons for authorising custody have ceased to exist he is under a duty either to release the accused or request that a judge advocate reviews the matter (subsection (2)) and such a review has to be done as soon as practicable (subsection (3)).

287.     When a judge advocate is conducting such a further review all of the provisions that apply to the initial review are operative except that if the accused is legally represented at a review hearing and gives his consent, the judge advocate may authorise up to 28 days in custody (subsections (4) and (7)).

288.      At his first review hearing the accused is permitted to advance any argument of fact or law to support his application for release (subsection (5)) but at any further review hearings the judge advocate is not obliged to hear any such arguments that he has already heard (subsection (6)).

Clause 109: Custody during proceedings of Court Martial or Service Civilian Court

289.      This clause is concerned with keeping an accused in custody during proceedings before the Court Martial or the Service Civilian Court.

290.      If a review under the previous clause takes place after the accused has been arraigned before either court (i.e. the charges are put to him and he enters his plea of guilty or not guilty), but before the court's proceedings have been concluded, the provisions that apply to the initial authorisation of custody are to apply with modifications (subsection (1)).

291.     Those modifications are that, in addition to considering whether conditions A to C described above are met, the judge advocate now also considers condition D; and if the accused has pleaded or been found guilty but is awaiting sentence any references to the offence with which the accused has been charged are to be read as references to the offence for which the accused is waiting to be sentenced (and references to strength of evidence no longer apply) (subsections (2) and (3)).

Arrest after charge

Clause 110: Arrest after charge or during proceedings by order of CO

292.      This clause is concerned with the situation where an accused (or offender, if he is awaiting sentence) has not been kept in custody but his commanding officer is satisfied (at any time) that taking him into custody is justified. In these circumstances the commanding officer may order the arrest of the accused (subsection 1) and any arrest may be executed using reasonable force (subsection 5).

293.     The commanding officer may only order the arrest of the accused if he has reasonable grounds for believing that the accused will do one or more of the things specified in subsection (2).

294.     Subsection 3 sets out further grounds for taking a person into service custody, namely that he has failed to attend a court hearing or there are reasonable grounds for believing that he has or will fail to comply with one of the conditions of his release.

295.      When a person is arrested under this clause he must be taken before a judge advocate as soon as practicable for his case to be reviewed (subsection 4).

Clause 111: Arrest during proceedings at direction of court

296.     This clause is concerned with the situation where an accused who is not in custody has been arraigned before the Court Martial or Service Civilian Court but the proceedings have not concluded and a judge advocate becomes satisfied that taking the accused into custody is justified, on the same grounds that apply to the commanding officer in the previous clause (subsection (3)).

297.     In these circumstances a judge advocate may direct that the accused be arrested (subsection (1)), and the arresting police officer may use reasonable force and exercise the various search provisions as if he was arresting the accused for a service offence under clause 67 (subsection (2)).

298.     When an accused is arrested under these provisions he must be brought before a judge advocate as soon as practicable for the purposes of a review (subsection 4)).

Chapter 3 - Custody proceedings rules Clause 112: Custody proceedings rules

299.     This clause sets out power of the Secretary of State to make rules by statutory instrument about matters relating to pre- and post-charge custody.


Chapter 1- Investigation

300.     In respect of investigations the service police are independent of the chain of command. Clauses 113 to 115 impose duties on commanding officers. These duties ensure that where appropriate service police forces will be notified of allegations or circumstances. This does not prevent the service police initiating an investigation if they become aware of circumstances or allegations that should properly be investigated.

Duties of commanding officers

Clause 113: CO to ensure service police aware of possibility serious offence committed

301.     This clause aims to ensure that the most serious allegations are reported to the service police for investigation. It requires the CO to inform the service police of the possibility that any offence listed in Schedule 2 has been committed. The offences listed there are inherently serious (that is offences where it is not possible to envisage circumstances in which a minor case of the offence might be committed and the offence would not be serious). The effect of this approach is that theft, for example, does not appear on the Schedule because although it can be very serious, it can also be very minor. This same test has been applied to the service discipline offences with the result that a limited number appear on the schedule.

302.     The clause also gives the Secretary of State a power by order to amend the Schedule; a power that it is anticipated might be used to add offences created after introduction of the Act to the list. The order is subject to annulment by either House of Parliament if it simply adds to the list of offences. If it makes any other change, for example removing an offence, it must be approved by both Houses while it is still a draft order.

Clause 114: CO to ensure service police aware of certain circumstances

303.     This clause requires officers of a prescribed description (who it is envisaged will be COs) to report allegations relating to certain circumstances to the service police. The types of allegations are to be prescribed in regulations. This is to ensure that where there is some particular sensitivity attached to an allegation, it is subject to examination by the independent service police.

Clause 115: Duty of CO with respect to investigation of service offences

304.     This clause places duties on a CO who hears of an allegation that a person under his command has committed a service offence, or who is aware of circumstances suggesting that someone under his command has committed such an offence. It aims to ensure that all such allegations are properly investigated. Except where the alleged offence is inherently serious (see clause 113) or relates to particular circumstances (see clause 114), where he must inform the service police, subsection (4) requires the CO to ensure it is appropriately investigated. He can do so either by ensuring his own staff investigates or by making sure that the service police are made aware of the allegation.

Duty of service policeman following investigation

Clause 116: Referral of case following investigation by service or civilian police

305.     This clause determines to whom a service policeman refers a case once he has investigated it. It also determines to whom a service police force refers a case that has been referred to it by a UK or overseas civilian police force. Its purpose is to ensure that serious cases are seen by the DSP but that all other cases are passed to the CO to deal with either by summary hearing or, if the soldier chooses or the CO decides, by the Court Martial.

306.     Subsection (2) requires that a service policeman who considers that there is sufficient evidence to charge the person with a Schedule 2 offence (i.e. the most serious offences) must refer the case directly to the DSP. Furthermore, when a service policeman considers there is sufficient evidence to charge some other offence and circumstances prescribed in regulations (which it is envisaged will describe certain aggravating circumstances) apply, he will also have to refer the case to the DSP.

307.     Where the offence is not one in Schedule 2 and no prescribed circumstances apply but the service policeman considers that there is sufficient evidence to charge the person with some other offence, subsection (3) requires that it is passed to the person's CO.

308.     Subsection (4) deals with cases where the matter has been referred to the service police either under clause 113 (possibility of a Schedule 2 offence) or clause 114 (existence of prescribed circumstances) and the service police propose not to refer the case to the DSP under subsection (2). In those circumstances the service police must consult the DSP as soon as reasonably practicable and in any case before referring the case instead to the CO.

Clause 117: Section 116: position where investigation is of multiple offences

309.      This clause aims to ensure that where the Director of Service Prosecutions (DSP) is seized of a case, he is also seized of other cases which he needs to be seized of to allow him to prosecute the first case effectively.

310.     The clause defines the term 'case' so that it relates to a particular incident in respect of a particular individual. It then allows for regulations to identify where a case is to be considered as referred along with the original case.

Chapter 2 - Charging and Mode of Trial

Powers of charging etc

Clause 118: Circumstances in which CO has power to charge

311.     This clause sets out the circumstances in which a CO has certain initial powers in respect of a case. Those initial powers are defined in Clause 119.

312.     Subsections (2) and (3) give the CO initial powers in relation to an allegation of a service offence provided that there is no investigation underway into the case by a service, UK or overseas police force and the allegation or circumstances are not of the kind that requires him to make sure a service police force are aware of them.

313.      Subsections (4) and (5) give a CO initial powers where a case has been referred to him either after investigation by a service policeman or by the DSP.

Clause 119: Power of CO to charge etc

314.     This clause details the initial powers available to the CO in respect of a case.

315.     Subsection (2) allows him to bring a charge or charges, providing they are of a kind which he is authorised to try himself.

316.     Subsection (3) allows him to refer the case to the DSP where he cannot, or takes the view he should not, try the case himself.

317.     Subsection (4) means that clause 122 applies to any charge brought under subsection (2) of this clause.

318.     Subsection (5) ensures that where a CO refers a case to the DSP, any other case in respect of which he has initial powers, and which regulations identify as sufficiently closely connected is also referred to the DSP. This allows for the effective prosecution of offences.

Clause 120: Power of DSP to direct bringing of charge

319.     This clause gives powers to the DSP where he has had a case referred to him by a service policeman or CO.

320.     Subsection (2) allows the DSP to direct that a charge or charges are brought against the person concerned.

321.     Alternatively, subsection (4) allows the DSP to refer the case back to the CO where the DSP considers that the case is not appropriate for trial by the Court Martial.

322.     Subsection (3) allows the DSP to allocate charges for trial in the SCC when that court has jurisdiction to try the charge.

323.     The DSP may also (subsection (5)) bar further proceedings in respect of the offence, providing it is one that the CO could have been directed to charge.

Clause 121: Charges bought at direction of DSP

324.     This clause provides that a CO must bring any charge against a person which he is directed to bring by the DSP. Unless the DSP allocates the charge to the Service Civilian Court, the charge(s) is allocated for trial by the Court Martial.

Powers after charge etc

Clause 122: Powers of CO after charge

325.     This clause gives certain powers to the CO of a person who has been charged (the 'accused') and is to be dealt with summarily. Those powers may be exercised before or after the start of a summary hearing.

326.     Where the CO amends, substitutes or adds a charge under this clause, subsection (4) requires that the amended, substituted or additional charge must also be one capable of being dealt with summarily and subsection (5) requires that the new charge must be in respect of the same case.

Clause 123: CO to hear charge allocated for summary hearing

327.     This clause requires the accused's CO to hear charges which are allocated for summary hearing and which are capable of summary trial, except where the CO decides to substitute a charge, discontinue proceedings or refer the case to the DSP or the accused elects to be tried by the court martial.

Clause 124: Powers of DSP in respect of charge allocated for Court Martial trial

328.     This clause gives the prosecution the powers listed in subsection (2) where a case has been allocated for Court Martial trial. Court Martial Rules will determine when these powers may be exercised after arraignment by the Court Martial or referral by the SCC.

329.     Subsection (4) requires that additional charges brought by the DSP must be in respect of the same case as the original charge.

330.     Any amended, substituted or additional charges are allocated for court martial trial (subsection (5)) and any charge referred to the CO is to be heard summarily (subsection (6)).

Clause 125: Powers of DSP in respect of charge allocated for SCC trial

331.     This clause gives the prosecution the powers listed in subsection (2) where a case has been allocated for SCC trial. SCC rules will determine when these powers may be exercised after the SCC has determined whether it should try the charge.

332.      Subsection (4) requires that any amended, substituted or additional charge must be of a kind that the SCC can try.

333.      Subsection (5) requires that additional charges brought by the DSP must be in respect of the same case as the original charge. Any amended, substituted or additional charges are allocated for SCC trial. A charge originally allocated for SCC trial may be allocated for Court Martial trial (eg if, on reflection, it is thought to be too serious for SCC trial).

Chapter 3 - Supplementary

Clause 126: Directions by DSP barring further proceedings

334.     This clause relates to the power of the DSP to make directions that a person is to be treated as being acquitted of an offence for the purposes of barring further proceeding under Service law or in civilian proceedings, or both. The power to make such directions is contained in clauses 120, 124 and 126.


Chapter 1 - Summary Hearing

Right to elect Court Martial trial

Clause 128: Right to elect Court Martial trial

335.     This clause requires a CO hearing a charge summarily to give the accused the opportunity to be tried by the Court Martial. If the accused chooses to be tried by the Court Martial, the CO must refer the charge to the Director of Service Prosecutions ("DSP") for Court Martial trial.

336.      Subsection (3) requires that where 2 or more charges are to be heard summarily together against the same accused and the accused chooses to be tried by Court Martial in respect of one of those charges, all charges are to be referred to the DSP.

337.     Subsection (4) requires an accused to be given the option for Court Martial trial in respect of any charge that is amended, substituted or added after the start of the proceedings.

Clause 129: Further consequences of election for Court Martial trial

338.     This clause prevents the DSP from taking certain actions (listed at subsections (2) and (3)) where an accused has elected Court Martial trial, without the written consent of the accused. The clause prevents an accused finding himself facing a charge of a type which the CO could not have tried him for (which will often be a more serious charge) as a result of his decision to be tried by the Court Martial.

339.     Subsection (4) prevents an accused electing to be tried by the Court Martial in respect of a charge which he previously consented to the DSP referring to the CO for a summary hearing.

Summary hearing

Clause 130: Summary hearing

340.     This clause gives the CO certain powers in respect of summary hearings. It allows him to dismiss the charge at any time (subject to subsection (4)) and requires him to do so if he determines that it has not been proved. Where he determines that charge has been proved he must record that finding and award one or more of the authorised punishments. In the case of findings that more than one charge has been proved, a single award of punishment is to be made in respect of all those charges. With the exception of 'minor punishments' (which may be listed in regulations) and service compensation orders only one punishment of each kind may be awarded in respect of a hearing.

Punishments available to commanding officer

Clause 131: Punishments available to commanding officer

341.     This clause lists the punishments which are available to the CO who has found a charge proved. It also places certain restrictions in relation to the rank of person who may receive certain punishments from the CO.

342.     Subsection (3) allows a CO to decide the details of a minor punishment, a provision which will allow for the different circumstances COs find themselves in, and further allows him to delegate functions under minor punishment regulations.

Clause 132: Detention: limits on powers

343.     This clause places limits on the amount of detention a CO may award and the circumstances in which he may do so.

344.     Subsection (1) allows him to award up to 28 days without extended powers and 90 days with extended powers to servicemen of the lowest non-commissioned rank.

345.      Subsection (2) requires him to have extended powers before awarding a punishment of detention (of any period) to a leading rate, lance corporal, lance bombardier or corporal in the RAF (or other air force).

346.     Subsection (3) gives a CO extended powers where he has applied for them and had them granted by higher authority. COs of 2* rank have inherent extended powers.

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Prepared: 6 December 2005