House of Commons - Explanatory Note
Armed Forces Bill - continued          House of Commons

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Clause 297: Duty to receive prisoners

677.     This clause confers a duty upon the governor of a civilian prison in England or Wales to receive and confine, for the duration of their sentence, any person who has been sent to the prison in accordance with the Service Custody rules to be made under clause 298.

Clause 298: Service custody etc rules

678.     This clause enables the Secretary of State to make rules about service custody and the service of sentences imposed by service courts.

679.     The rules may contain provision for:

  • the provision, classification, regulation and management of service custody premises. These include the Military Corrective and Training Centre which accommodates persons serving sentences of service detention and persons who are in service custody pre-sentence. They also include smaller facilities such a guardrooms which are used for the temporary accommodation of persons in service custody;

  • the appointment, powers and duties of inspectors and visitors of service custody premises and of members of staff;

  • the classification, treatment, employment, discipline and control of persons in service custody;

  • the places in which persons may be required to serve sentences of service detention;

  • the removal of such persons from one place or type of custody to another; the committal of persons under sentence to appropriate establishments;

  • the circumstances in which persons serving sentences who are unlawfully at large are to be treated as not being unlawfully at large;

  • the release (including temporary or early release) of persons serving sentences of service detention.

680.     The rules may confer power to use reasonable force where necessary for the purpose of searching a service custody establishment or a person in service custody and the power to seize and detain unauthorised property. The rules may make provision for the creation of disciplinary rules and provide for the award of additional days to a person found guilty of an offence created by the rules.

681.     The rules may also provide for the determination of any matter by a judge advocate, with provision for appeals against such determinations, and may apply certain statutory provisions dealing with offences by persons other than prisoners.

Clause 299: Duration of sentences: person unlawfully at large or on temporary release

682.     This clause provides for the duration of a sentence to be adjusted where the sentenced person spends any period of the sentence unlawfully at large or on temporary release. It provides that any period during which the person is unlawfully at large or has been temporarily released on compassionate grounds shall not count against sentence.

683.     This provision applies to sentences of service detention and applies to custodial sentences where the period of absence occurs before the person arrives at the custodial establishment. The effect of the clause is to extend the period of the sentence by the number of days that the person is absent, calculated according the rules in subsection (5).

Clause 300: Remission of certain sentences on passing of custodial sentence etc

684.     This clause applies where a person is already serving a relevant sentence (defined as a sentence of service detention, a service supervision and punishment order or a minor punishment) and, during that sentence, is sentenced in separate proceedings to a custodial sentence, either in respect of a service offence or by a civilian criminal court. Where this occurs, the unserved balance of the relevant sentence is to be remitted. This means that the person will cease to serve the relevant sentence and will instead immediately commence the new custodial sentence in the appropriate establishment. The person does not remain liable to serve the unserved balance of the relevant sentence, which is effectively cancelled.

Clause 301: Power of service policeman to arrest persons unlawfully at large

685.      This clause permits a service policeman to arrest a person sentenced to service detention who is unlawfully at large. The arrested person may be taken to the place where he is required to be detained (subsection (1)). The clause refers back to clause 299(4) where the term "unlawfully at large" is defined for certain purposes (subsection (2)). Subsection (3) permits the use of reasonable force when arresting a person or taking him to the place where he is to be detained under subsection (1).


Clause 302: Sentences passed by civilian courts

686.      This clause makes clear that references to custodial sentences in Part 12 of the Bill and references to detention orders under clause 296(2) only apply to such sentences imposed by service courts, not those imposed by civilian courts.


Chapter 1 - Testing for Alcohol and Drugs

687.     These clauses authorise drug and alcohol tests to be carried out in specified circumstances on persons who are subject to service law. The results of such tests are not admissible as evidence in proceedings for a service offence. These clauses do not limit the statutory powers to test for alcohol and or drugs under PACE or the Road Traffic Act 1988; nor do they affect the admissibility of evidence obtained under those statutes in any proceedings.

Clause 303: Testing for drugs

688.     This clause provides a power to demand, from a person subject to service law, a sample of urine to test for drugs. The power underpins the operation of a random drug testing programme; under which all members of HM Forces, regardless of rank, are subject to periodic random testing. There is no requirement for a person to be suspected of drug misuse before a urine sample can be demanded.

689.     The power must not be used where a person might have been the cause of or contributed to a serious incident or where a person is being investigated for an offence under the Bill. "Drug" and "Drug Testing Officer" are defined within the clause. The power cannot be exercised when the Drug Testing Officer is the CO of the person being tested.

690.     The clause also creates an offence where a person fails to comply with a requirement to provide a urine sample under the powers in this clause.

Clause 304: Testing for alcohol and drugs after a serious incident

691.     This clause applies to persons who are subject to service law and civilians who are subject to service discipline. The clause creates a power to demand and test a sample (normally urine or breath) for the presence of alcohol and or drugs after a serious incident, such as an aircraft crash or near miss. The tests will ascertain whether the donor of the sample was under the influence of drugs or alcohol when the incident occurred.

692.     The power is available when the CO of the person being tested believes that the person may have caused or contributed to a serious incident. The purpose of the is to obtain evidence of drug or alcohol consumption in order to assist a service inquiry (clause 337) to determine whether such consumption or use might have been a factor in an incident. The power in the clause can only be exercised by the CO of the person being tested or by a person to whom the power has been delegated through Defence Council regulations.

693.     The clause also creates an offence of failing, without reasonable excuse, to provide a sample when requested to do so under the powers in this clause.

Clause 305: Interpretation of section 304

694.     "Sample" for the purposes of clause 304 is urine or breath. This clause also provides that the Secretary of State can make an order specifying that other types of sample can be taken but this power is restricted to samples which are non invasive such as saliva or hair. Other samples cannot be taken unless the donor consents. This precludes force being used to obtain such samples.

695.     The definition of "drug" under clause 304 is wider than that in clause 303 as the Secretary of State as a power, by order, to specify that other types of drug shall also be a drug for this purpose.

Clause 306: Sections 303 and 304: supplementary

696.     This clause authorises the Defence Council to make regulations governing the manner in which samples can be obtained and analysed. The regulations may deal with a number of procedural matters concerning the taking of samples: for example, the number of times a person may be required to provide a sample; the procedures employed to analyse samples; and the training and qualifications of those persons carrying out the analysis.

Chapter 2 - Contempt of Court

697.     This Chapter enables service courts to deal with misbehaviour by anyone either at the court or in relation to proceedings before those courts. Such misbehaviour is known in civilian courts as contempt of court. In all cases the powers are exercised by the judge advocate.

698.     The judge advocate's powers are broadly the same as those of a magistrate in England and Wales under the Magistrates' Courts Act 1980 and the Contempt of Court Act 1981. Existing powers under the SDAs are replaced with a single approach regardless of the rank or rate of the offender. These powers can be exercised against anyone, they are not restricted to persons subject to service law or civilians subject to service discipline.

699.     If a person is misbehaving in a service court the judge advocate may:

  • order them to be held in service custody and detained;

  • impose a fine; or

  • commit the offender to service custody (up to a maximum 28 days) if they are subject to service law or a civilian subject to service discipline.

700.     Committal to service custody will be a unique punishment which may be carried out at any service custody premises, including the MCTC. It is not the same as a sentence of service detention, so will be administered by MCTC in their remand wing where officers and civilians subject to service law may already be held prior to their trial by court martial.

701.     Civilians who are not subject to service discipline under the Bill may not be committed to service custody but may instead be fined up to a maximum of level four on the standard scale (currently £2,500).

702.     These powers are intended to deal with misbehaviour in the face of the court. More serious forms of contempt are to be dealt with by a civilian court under clause 304.

Clause 307: Offences of misbehaviour in court etc

703.     Subsection (1) defines the misbehaviour which constitutes the offence.

704.     Subsections (2) and (3) establish the punishments which may be awarded summarily by the judge advocate depending on whether the civilian offender is subject to service discipline or not.

705.     Subsection (4) enables the court to revoke an order committing the offender to service custody and, if he is already in custody, for him to be discharged. It enables the court to bring the punishment to an end if the person gives an appropriate apology.

706.     Subsection (6) establishes that contempt may be committed by any person in the face of a service court sitting in the UK, and by a person subject to service law or service discipline in relation to service courts sitting elsewhere.

Clause 308: Powers to detain before dealing with section 307 offence

707.     Subsection (1) gives the court power to order that a person who is committing the offence of misbehaviour in court be take into service custody by a service policeman, a member of a UK police force or a member of the court staff and for him to be detained in service custody until the court rises.

708.     Subsections (2) and (3) provide that, if the court considers it should not decide whether to exercise its powers in relation to the contempt and provided certain conditions are met, the offender may be detained for a further period, but no longer than 48 hours in total.

709.     Subsection (4) defines the criteria that must be met is a person is to be held in service custody after the court rises.

Clause 309: Certification to civil courts

710.     This clause applies where a person commits an act of contempt of court which is beyond the powers provided by clauses 307 or 308, or where the act could be dealt with under those powers but the court chooses to refer the matter to a civilian court.

711.     The service court may certify the contempt to a civilian court which has power to commit for contempt of court. That civilian court may then inquire into the matter under its own normal procedures.

712.     The power is similar to that provided for a number of other inferior courts and tribunals, for example the Data Protection Tribunal (section 6 of the Data Protection Act 1998).

Clause 310: Decisions of court under section 307: making and effect

713.     Subsection (1) provides that the rules relating to findings by the Court Martial and the Summary Appeal Court, and in particular the roles of the lay members, do not

apply to these matters. The powers under clauses 307 or 308 are to be exercised by the judge advocate alone.

714.     Although committal to service custody is not service detention, certain of the rules relating to service detention can be applied in respect of such custody.

Chapter 3 - Arrest and Detention by Civil Authorities

Arrest for service offences

Clause 311: Arrest by civil police under warrant of judge advocates

715.     This clause permits judge advocates to issue warrants to the civilian police forces of the United Kingdom or any British overseas territory for the arrest of persons reasonably suspected of having committed service offences.

716.     Subsection (4) places an obligation on those making an arrest under such a warrant to transfer the arrested person into service custody as soon as practicable.

Arrest etc for desertion or absence without leave

717.     Clauses 312 to 315 deal with the powers and responsibilities of the civilian authorities (police and courts of summary jurisdiction) in respect of the arrest of or the surrender by absentees without leave and deserters, and their subsequent return to the Service authorities.

Clause 312: Arrest by civilian police of deserters and absentees without leave

718.     Subsection (1) permits the civilian police to arrest a suspected absentee without a warrant. Subsection (2) allows for an arrest warrant to be issued.

719.      Subsection (4) requires that a person who is arrested must be bought before a court of summary jurisdiction.

Clause 313: Deserters and absentees without leave surrendering to civilian police

720.     Subsection (1) directs that a person who surrenders himself as being a deserter or absent without leave ("illegally absent") must be taken to a police station.

721.     Subsection (3) directs that the person in charge of the police station (or a person authorised by him) must consider the case.

722.     Under subsection (4) if it appears to the person considering the case that the person who has surrendered is subject to service law and illegally absent, he may arrange for him to be (a) delivered into service custody, (b) brought before a court, or (c) released with conditions as to his reporting at a future time and place ((c) is equivalent to being granted police bail in England and Wales).

Clause 314: Proceedings before civilian court where person suspected of illegal absence

723.     This clause details the duties of a summary court when a person admits to being illegally absent or where the court is in possession of evidence that he is illegally absent.

724.     Under subsection (3) if the suspect is not in custody for some other cause and the required evidence exists, the court must either (a) arrange for the suspect to be delivered into service custody, or (b) release him subject to conditions in respect of his reappearance at a later time and place ((b) is equivalent to being bailed by the magistrates' court in England and Wales).

725.      Where the court does not have evidence that the person is illegally absent he must be released unless the person is in custody for some other cause.

726.     Subsection (5) allows a court to hold a person in custody pending his transfer into service custody where it is likely that such transfer will be subject to delay.

727.     Subsection (6) provides that a person who has been released under subsection (4) may nevertheless be subsequently arrested (either pursuant to a warrant for his arrest or under the provisions of clause 67 which set out the powers of arrest when a person is reasonably suspected of committing or having committed a service offence) or if he is suspected of having committed an offence under clause 8 or 9 (desertion or absence without leave).

Clause 315: Warrant for the arrest of persons released under section 313(4)c) or 314(3)(a)(ii)

728.     When a suspect is released from custody subject to conditions under clause 313(4)(c) or clause 314(3)(a)(ii) and he fails to meet those conditions, a warrant may be issued for his arrest. Such warrants may be issued by a judge advocate in both instances, and if the release was authorised by a civilian court, by a person authorised to issue warrants by that court. This clause also provides that the Secretary of State may make rules which set out the practice and procedure with respect to the issue by judge advocates of warrants under this section.

Arrest of persons unlawfully at large

Clause 316: Arrest by civil police of persons unlawfully at large

729.     This clause deals with the arrest by the civilian police in the United Kingdom or a British overseas territory of persons subject to service law who are unlawfully at large.


Clause 317: Certificates in connection with delivery into service custody etc

730.     This clause allows the Secretary of State to make a provision requiring a certificate in respect of a person who having been apprehended by the civil authorities is either delivered into service custody or released by them.

Chapter 3 - Financial Penalty Enforcement Orders

Clause 319: Financial penalty enforcement orders

731.     Service legislation currently makes provision for financial penalty enforcement orders (Naval Discipline Act 1957, section 128F; Army Act 1955, section 133A; Air Force Act 1955, section 133A). This provides a means of enforcing unpaid or unrecovered fines, stoppages and compensation orders in respect of 'qualifying offences' awarded against persons under the SDAs, where the person is no longer subject to service law nor a civilian to whom relevant Parts of any of the SDAs apply (so that they may be dealt with under the SDAs for offences) or where the person is a special member of a reserve force within the meaning of the Reserve Forces Act 1996.

732.     A financial penalty can be enforced by the magistrates' court in England and Wales, the sheriff court in Scotland or the court of summary jurisdiction in Northern Ireland. If the conditions in the provisions are satisfied, the Defence Council or an authorised officer can make a 'financial penalty enforcement order', for the registration of the penalty by the appropriate court; once registered, service enforcement procedures cease to be available for the recovery of the outstanding sum and the sum is treated for all purposes as if it had been a fine imposed on conviction by the court where it is registered.

733.     Clause 319 creates powers for dealing with financial penalty enforcement orders under the Bill.

734.     Subsection (1) provides that the Secretary of State may make regulations to enable the Defence Council or authorised persons to make orders for enforcing financial penalties by prescribed courts in England and Wales, Scotland and Northern Ireland or the Isle of Man.

735.     The regulations may in particular provide for the cases in which orders may be made; the form content and effect of orders; and the functions of the Defence Council in relation to such orders and their power to delegate such functions (subsection(2)).

736.     The regulations may provide that an outstanding sum is to be treated as if it had been a fine imposed by a specified court and for prescribed enforcement procedures to be or cease to be available on prescribed events (subsection(3)).

737.      Subsection (4)) defines 'financial penalty' as a fine or compensation order imposed by virtue of this Bill (including such penalties ordered to be paid by a service parent or guardian under clause 267), and a sum adjudged to be paid under clause 235(3).

Power to make provision in consequence of criminal justice enactments

Clause 320: Power to make provision in consequence of criminal justice enactments

738.     Subsection (1) of this clause provides the Secretary of State with a power to make an order in consequence of a 'criminal justice enactment', which is defined in clause 321 as an enactment passed after 1st January 2001 which amends the law of England and Wales relating to any criminal justice matter.

739.     An order may make provision in relation to service policemen, service courts, persons subject to service law, civilians subject to service discipline, and service law proceedings, which (subject to any appropriate modifications) is equivalent to that made by the criminal justice enactment, or by any enactment relating to a criminal justice matter amended by it, or by any subordinate legislation made under it or under any Act amended by it (subsections (2) and (3)).

740.     An order under this clause may make provision in such way as the Secretary of State considers appropriate (subsection (4)). An order under this clause is subject to the negative procedure unless it amends an Act textually, in which case it is subject to the "affirmative resolution procedure".

741.     The effect is that, where appropriate, service law can be changed by order of the Secretary of State following changes in the law of England and Wales affecting defined aspects of criminal justice. This will enable provisions of service law to keep pace with changes that affect the criminal justice system in England and Wales.

Clause 321: Section 320: definitions

742.     Subsection (1) of this clause defines 'criminal justice enactment' for the purpose of clause 320.

743.     Subsection (2) defines 'criminal justice matter' for the purposes of clause 320 and subsection (1) (and includes a power for the Secretary of State to make orders prescribing other matters). Subsection (3) deems section 5 of the Criminal Justice (International Co-operation) Act 1990 to be a criminal justice enactment (which it would not otherwise be, having been passed before 2001).

744.     Subsection (4) defines 'service court' for the purposes of clause 320.

745.     Subsection (5) provides that for the purposes of clause 320 "service law proceedings" means proceedings under the provisions of this Bill or the Court Martial Appeals Act 1968, but excluding proceedings relating to civilian offences under the Bill.

746.     An order under subsection (2)(h) is made by statutory instrument subject to the "affirmative resolution" procedure which requires a draft of the order to be laid before both Houses of Parliament and be approved by resolution of both Houses

Chapter 5 - Miscellaneous

Clause 322: Burden of proof as respects excuses

747.     Generally in criminal proceedings, it is for the prosecution to prove beyond all reasonable doubt that an accused person is guilty of an offence; an accused person has no burden of proof placed upon him. This clause operates to impose a burden of proof on an accused in certain circumstances. The circumstances are that the accused is asserting that he had a lawful or reasonable excuse for his conduct and having a lawful or reasonable excuse is a defence to the offence charged. The clause does not require an accused to prove that he had the excuse beyond all reasonable doubt or on a balance of probabilities but he must raise "sufficient" evidence of an excuse. What is sufficient will vary. In some cases it might be enough for the accused person to give evidence stating why he believed he had the excuse. Evidence of the excuse can be obtained from the accused person or another source, for example evidence given by a prosecution witness.

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Prepared: 6 December 2005