House of Commons - Explanatory Note
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Clause 340: Obstructing persons subject to service law in the course of duty

814.     This clause creates the offence of obstructing a person subject to service law in the course of his duty (subsection (1)). A person guilty of an offence under this clause may be sentenced by a court of summary jurisdiction to imprisonment for a term not exceeding the relevant maximum or to a fine not exceeding level 3 on the standard scale, or to both (subsections (3) and (4)). The "relevant maximum" is 51 weeks in relation to England and Wales and, otherwise, 6 months. As to the meaning of "the standard scale" see clause 367(5) and (7).

815.     Subsection (1) makes it an offence intentionally to obstruct a person acting in the course of his duty whom the offender knows, or has reasonable cause to believe, is subject to service law.

816.     Subsection (2) provides that an offence contrary to this section may be committed anywhere in the United Kingdom, the Isle of Man or a British overseas territory.

Clause 341: Sections 338 to 340: supplementary provisions

817.     Subsection (1) provides that where an offence contrary to clause 338 or 339 is committed in a British overseas territory, proceedings may be taken and the offence may, for incidental purposes be treated as having been committed in the United Kingdom or the Isle of Man. This does not prevent proceedings being taken for the offence in that British overseas territory.

818.     Subsection (2) provides that where an offence contrary to clause 338 or 339 is committed otherwise than in the United Kingdom, the Isle of Man or a British overseas territory, proceedings may be taken and the offence may, for incidental purposes, be treated as having been committed in the United Kingdom, the Isle of Man or a British overseas territory.

819.     Subsection (3) provides the definition of "United Kingdom national" for the purposes of clauses 338 and 339.

820.     Subsection (4) defines what "knowing or having reasonable cause to believe" that another person is subject to service law for the purposes of clauses 338 to 340.

Clause 342: British overseas territories: references to maximum penalties

821.     This clause relates to the maximum sentence that can be imposed in a British overseas territory, following a conviction for an offence under clauses 338 to 340 or under regulations made by virtue of clause 337(5)(b). The clause enables the law of a British overseas territory to provide for a sentence of imprisonment or a fine to be higher or lower than that provided for by the Bill, and it may further specify the amount of local currency that is to be considered as equivalent to the maximum fine. This allows the British overseas territories to set penalties in line with those provided for under their own law for similar levels of offence, taking into account matters such as average local incomes which may differ from those in the United Kingdom.

Exemptions for certain civil matters

Clause 343: Exemption from tolls and charges

822.     This clause preserves the exemption for vehicles belonging to or in the service of Her Majesty's Forces from tolls or charges in respect of their passing over roads or bridges and through tunnels. This section also covers schemes for imposing charges on the keeping or use of vehicles on particular roads.

Clause 344: Exemptions of property used for service purposes from execution

823.     This clause prevents items used by a serviceman in the course of his duty from being taken in execution of a court order. It is specifically intended to cover items owned by the serviceman rather than those issued to him (which are not his property).

Powers of officers etc

Clause 345: Detention etc of persons in overseas service hospitals

824.     This clause introduces Schedule 11. Schedule 11 makes provision for admitting persons suffering from mental disorder to service hospitals outside the British Islands, and detaining them temporarily in such hospitals, for assessment or treatment in certain circumstances. The provisions apply only to persons subject to service law or civilians subject to service discipline who are outside the British Islands.

Clause 346: Power to take affidavits and declarations

825.     This clause re-enacts a provision which authorises certain officers outside the United Kingdom to take affidavits or declarations from persons subject to service law or to service discipline, where an otherwise qualified person may not be available. Such statements may be required in a variety of criminal and civil proceedings.

826.     Subsection (2) sets out the matters which the authorised officer must state in the jurat or attestation at the end of the affidavit or declaration.

827.     Subsection (3) provides that a statement contained in an affidavit or declaration that purports to be signed by an authorised officer shall be admitted in evidence without separate proof of the signature or the facts contained in the statement.

828.     Subsection (4) prescribes who may be an authorised officer.

Miscellaneous

Clause 347: Extension of powers of command dependant on rank

829.     The Armed Forces derive their effectiveness in part from the exercise of command. Some functions of command rely upon the authority of a person that flows from appointment to a particular responsibility, whilst other functions rely solely on the authority inherent in rank or rate. This clause provides that an officer, warrant officer, or non commissioned officer of the regular or reserve forces (being subject to service law) is deemed to have the necessary powers of command that rely upon rank or rate over members of any other regular or reserve forces who are inferior in rank or rate to him. This means that a Captain in the Royal Navy has powers of command over a Lieutenant Colonel in the Army when those powers of command rely solely upon rank.

Clause 348: Service of process

830.     This clause gives the Secretary of State power to make regulations allowing the service of process on "relevant persons" in connection with prescribed proceedings. "Relevant persons" are defined as civilians who are subject to service discipline and members of the regular forces and members of the reserve forces (unless the latter are undertaking any training or duty) (subsection (3)). The regulations may determine when service of process on a person's CO will amount as service on the person himself and when service of process has no effect (subsection (2)), for example when the CO certifies that the person is under orders for active service and that, in the COs opinion, there is not enough time for the person to attend the hearing and return.

Clause 349: Avoidance of assignment of or charge on pay and pensions etc

831.     This clause makes void assignments etc made of or against a serviceman's pay, pension, bounty, grant or allowances. It further prevents a court from making an order which has the effect of preventing a serviceman receiving his pay etc and directing payment of it to another person.

832.     Subsection (4) makes two exclusions to the provision: the making or variation of attachment of earnings orders, which through the Attachment of Earnings Act 1971 may only be made against service pensions and gratuities; and the payment of a serviceman's earnings to his trustee in bankruptcy for use in discharging his debts.

Clause 350: Power of British overseas territory to apply Act, etc

833.     Forces raised under the laws of a British overseas territory (BOT) are HM forces. Four BOTs (Bermuda, Gibraltar, The Falkland Islands and Montserrat) raise defence forces under their own law.

834.     Subsection (a) is necessary because BOTs do not have the power to make legislation with an extraterritorial effect without express permission.

835.     Subsection (b) indicates that a BOT which makes legislation for its own defence force may do so by applying provision of this Bill. It is not mandatory, and a BOT may make legislation for its own defence force which is unrelated to this Bill.

Clause 351: Amendments relating to reserve forces

836.     This clause introduces Schedule 12.

THIRD GROUP OF PARTS - GENERAL

PART 18 - COMMANDING OFFICER AND OTHER PERSONS WITH FUNCTIONS UNDER ACT

Introduction

837.     Clauses 352 to 356 provide enabling provisions and definitions in respect of various persons vested with functions under the Bill.

Officers

Clause 352: Meaning of "CO"

838.     This clause provides the Defence Council with the power to make regulations defining who the CO of another person is for the purposes of any provision of the Bill.

Clause 353: Meaning of "higher authority"

839.     This clause defines higher authority in relation to a CO for the purposes of the Bill as anyone superior to the CO in his disciplinary chain of command.

Court officials

Clause 354: Court Administration Officer

840.     This clause creates the post of the court administration officer for the Court Martial, the Service Civilian Court and the Summary Appeal Court. This officer is responsible for administrative matters such as listing cases and notifying witnesses of hearings in respect of proceedings before the three Service courts.

841.     To establish his independence from the chain of command, the power to appoint the court administration officer is vested in the Defence Council.

Service prosecution authority

Clause 355: Director of Service Prosecutions

842.     This clause creates the post of Director of Service Prosecutions (DSP) and prescribes the minimum qualifications required to hold the appointment.

843.      To establish the independence of the post holder, who is not restricted to being an officer in Her Majesty's Forces, from the chain of command the power to make the appointment is vested in Her Majesty.

Clause 356: Prosecuting officers

844.      This clause allows the DSP to appoint officers to be prosecuting officers. Subsection (2) sets out the legal qualifications that an officer must have in order to be so appointed. Subsection (4) provides that an officer who is appointed to the role of prosecuting officer may exercise any of the functions of the DSP, unless the DSP directs otherwise. This means that the DSP does not have to delegate each function when he wishes it to be exercised by a prosecuting officer - rather prosecuting officers may exercise any function of the DSP unless the DSP directs that they may not. Such a direction may be general or specific.

PART 19 - SUPPLEMENTARY

Chapter 1 - Application of Act

Persons subject to service law

Clause 357: Persons subject to service law; regular and reserve forces

845.     This clause sets down who is subject to service law and therefore subject to the provisions of this Bill. A member of the regular forces is subject to service law at all times whilst a member of the reserve forces is subject to service law only when he falls into one of the categories of (a) to (e) set down at subsection (2).

Clause 358: References to member of the regular forces

846.      This clause provides who, for the purposes of this Bill, is to be regarded as being a member of the regular forces. A member of the reserve forces who is recalled to service is to be regarded as a member of the regular forces from the time that he is accepted in permanent service following his recall until he is discharged or released from that service (subsection (2)). However, unless he has been recalled under the provisions set out in subsection (2), an officer is only to be regarded as being a member of the regular forces if he is on the active list (subsection (3)). Subsection (4) then defines what being on the active list means. This means, for example, that a Royal Marines officer who has retired from the service (but retains his commission for life) is not to be regarded as a member of the regular forces (unless he is recalled to service).

Clause 359: Members of British overseas territories' forces serving with UK forces

847.     This clause provides that when a member of a British overseas territory force is undertaking any duty or training with the regular or reserve forces he becomes subject to service law as if he were a member of the regular or reserve force (subsections (1) and (2)). He is also treated as if he were a member of the regular or reserve force of an equivalent rank or rate (subsection (2)(b)). The clause also empowers the Secretary of State to make orders (by statutory instrument) that modify any of the Bill's provisions with respect to members of a British overseas territory force who are or have been caught by the provisions of this clause (subsection (3)). Civilians subject to service discipline

Civilians subject to service discipline

Clause 360: Civilians subject to service discipline

848.     This clause defines a "civilian subject to service discipline" as a person who is not subject to service law and falls within one of the categories set out in Part 1 of Schedule 13. It also gives effect to Part 2 of Schedule 13.

Naval Chaplains

Clause 361: Naval chaplains

849.     This clause enables provision to be made for Naval Chaplains. Naval chaplains are in a unique situation because they have no rank and are commissioned simply as a 'chaplain' rather than as an officer within a chaplains' branch. This clause enables the Secretary of State to make regulations (by statutory instrument) which apply any of the provisions of the Act which apply to officers generally, to naval chaplains in particular.

850.     The regulations may determine the rank a chaplain is to be considered as holding in those circumstances where a provision affects an officer differently depending on his rank.

Chapter 2 - Other Supplementary Provisions

Clause 362: Evidence in proceedings before civil courts

851.     This clause gives the Secretary of State power to make provision by regulations with respect to evidence in proceedings for an offence created by or under this Bill before a civilian court in the United Kingdom, Isle of Man or a British overseas territory. It replaces provisions contained in the SDAs dealing with the admissibility of certain service documents as evidence. These provisions may now be made in regulations.

Clause 363: Orders, regulations and rules

852.     This clause provides that where the Bill creates any power for the Secretary of State to make orders, regulations or rules, these are to be made by statutory instrument and are therefore subject to Parliamentary scrutiny. In certain specified cases set out in subsection (3) those statutory instruments are laid in draft and have to be approved by both Houses of Parliament before coming into effect; whereas all others will come into effect on a prescribed date but may be annulled by a subsequent decision of either House (subsection (4)). There are two exceptions when the statutory instruments are not subject to the affirmative resolution procedure described in subsection (3) or the negative resolution procedure described in subsection (4), namely when the Secretary of State makes a commencement order under clause 372 or an Order in Council under clause 373.

853.     The clause also prescribes that where the Defence Council is empowered to make regulations by statutory instrument, the provision of the Statutory Instruments Act 1946 (which provides only for the Sovereign and Ministers of the Crown to make statutory instruments) are extended to the Defence Council for these purposes, thereby treating the Defence Council as if it were a Minister of the Crown.

Chapter 3 - Interpretation

Clause 365: Definitions relating to police forces

854.     This clause contains definitions relating to service, civilian and overseas police forces. One change to be noted is that the "Royal Navy Regulating Branch" has been renamed the "Royal Navy Police", in order to make it clearer that this is a police force.

Clause 366: "Conviction", "sentence" etc in relation to summary hearings and the SAC

855.     This clause defines the meaning of certain terms in relation to summary hearing and the Summary Appeal Court. For example a punishment which is awarded by the officer hearing a summary charge or the Summary Appeal Court is to be treated as a sentence (subsection (3)), and for the purposes of a summary hearing "in open court" means in the presence of the offender (subsection (5)), not in the ordinary sense of being open to the wider public.

Clause 367: Further interpretive provisions

856.     This clause explains how a number of miscellaneous matters are to be interpreted or construed. For example, determining whether a Commander in the Royal Navy is equivalent to, superior to or inferior to an Army Major or a Wing Commander in the Royal Air Force must be in accordance with Queen's regulations drawn up for the purpose (subsection (3)).

Chapter 4 - Final Provisions

Clause 369: Power to make further amendments and repeals

857.     This clause gives the Secretary of State the power to make orders (by statutory instrument) to amend or repeal any primary legislation passed before or in the same session as this Bill or to amend or revoke any secondary legislation made before this Bill is passed, for the purposes of giving full effect to the Bill or to make provision consequential to it. The references to primary and secondary legislation include Acts of the Scottish Parliament or Northern Ireland legislation and subordinate legislation passed under such Acts or legislation.

858.     In respect of the devolved administrations this power will only be used in connection with devolved matters when specifically for the reserved purpose of defence, and any such amendments or repeals will be subject to consultation. An order under this clause may not be made unless approved in draft by both Houses of Parliament (clause 363(3)).

Clause 370: Power to make transitional and transitory provision

859.      This clause allows the Secretary of State to make orders (by statutory instrument) in respect of the transitional and transitory provisions needed to bring the Bill into effect.

860.     The clause details particular matters at subsections 2 and 3 which such orders may cover such as providing for proceedings that have been begun before the commencement of certain provisions of this Bill to be continued after those provisions are commenced. This will allow, for example, orders to be made that would ensure that a court martial trial which started before the commencement of the provisions of this Bill that establish the standing Court Martial, may continue even though the Court Martial comes into existence part way through the court martial trial.

861.     Subsection 5 deals with the possibility of certain provisions of this Bill coming into force before those provisions of the Criminal Justice and Court Services Act 2000 which they mirror are commenced, and it allows an order made under subsection 4 to make specific provision in respect of custodial punishments to deal with this potential situation.

862.     Subsection 6 ensures that powers may not be exercised under this clause that would allow an offender to be given a punishment in respect of an offence that is more severe than the punishment that the offence attracted at the time when he committed the offence. This means that if an offence attracts punishment A under the current law, and the offender commits the offence whilst the current law is in force but falls to be punished for the offence when this Bill is in force, he cannot be given a greater punishment for that offence than punishment A, even though the more severe punishment B may be available under this Bill.

863.     Subsection 8 provides that if any of the provisions of the Service Discipline Acts are saved by an order made under this clause, that saving preserves the provision even though the provision might be repealed or expire under clause 371(1).

Clause 371: Duration of the SDAs and this Act

864.     This clause provides for the existing SDAs to expire five years after the passing of the Bill or sooner if repealed. In the intervening period the full effect of the Bill will be brought into force. It also provides for the Bill, once passed, to expire after five years. This means that, once passed, this Bill will have to be renewed by primary legislation before the expiry of five years from that time or service law will not be in force.

865.     This replaces the renewal arrangements that apply to the SDAs which must be renewed every five years by primary legislation and in the intervening years by Order in Council approved in draft by both Houses of Parliament.

Clause 372: Commencement

866.     This clause provides for certain clauses to come into effect on the day the Bill is passed and becomes an Act. All other provisions may be brought into force on a day appointed for the purpose by the Secretary of State by order. Orders under this clause are made by statutory instrument, but by virtue of clause 363(4) they are not subject to the negative or affirmative resolution procedure.

Clause 373: Extent to Channel Islands, Isle of Man and British overseas territories

867.     This clause concerns the question of whether the Bill extends to (i.e. forms part of the law of) the Crown Dependencies (the Channel Islands and the Isle of Man) and the British overseas territories.

868.     Under subsection (1), the provision of the Bill will extend to (i.e. form part of the law of) the Channel Islands only if an Order in Council is made to that effect. Such an Order may contain modifications of the Bill.

869.     Under subsection (2), the provisions of the Bill extend to (i.e. form part of the law of) the Isle of Man and the British overseas territories, subject to any modifications made by Order in Council

870.      The Bill says nothing about its extent to England and Wales, Scotland or Northern Ireland. The result is that the Bill will extend to (ie form part of the law of) England and Wales, Scotland and Northern Ireland.

871.     Orders made under this section are made by statutory instrument, but by virtue of clause 363(4) they are not subject to any parliamentary procedure.

Clause 374: Extent of applied enactments

872.      This clause provides that where the provision of any other Act (or subordinate legislation made under such an Act) is applied by this Bill or an order under it, that provision is applied to the extent allowed by this Bill or order under it, regardless of the extent provisions set down for its operation other than in connection with this Bill.

SCHEDULES

SCHEDULE 1 - CRIMINAL CONDUCT OFFENCES THAT MAY BE DEALT WITH AT A SUMMARY HEARING

873.     At present the Army and the RAF set out which criminal conduct offences a commanding officer may deal with summarily, whilst the Royal Navy places very few restrictions on the offences that may be tried summarily (although the powers of punishment available to Royal Navy COs necessarily operate to restrict which criminal conduct matters may be tried summarily). Under the Bill the criminal offences that may be heard summarily are set out in this Schedule and are divided into those that a CO may hear without extended powers (see the notes on Part 2 of the Schedule below) and those for which such powers are required. Clause 53 provides that the Secretary of State may by order amend this Schedule.

Part 1 - Offences that may be dealt with without permission

874.     For the purposes of a summary hearing there are certain criminal conduct offences that a Commanding Officer may deal with without the grant of extended powers from higher authority. These criminal conduct offences are listed in Part 1 of Schedule 1. There are twelve such criminal conduct offences that the CO may hear summarily without extended powers and they range from the more serious, such as theft (contrary to s.1 Theft Act 1968), to the less serious, careless cycling.

Part 2 - Offences that may be dealt with only with permission

875.     Those criminal conduct offences that the CO may hear summarily only if he has been granted permission to do so by higher authority, or he is a senior officer, are listed in Part 2 of this Schedule. There are eight such offences covering matters such as actual bodily harm (contrary to s.47 of the Offences Against the Person Act 1861) to dishonestly obtaining electronic communications services (contrary to s.125 of the Communications Act 2003).

 
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Prepared: 6 December 2005