sc0943003.107-113

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Select Committee Proceedings: 30th March 2006
107

Armed Forces Bill, continued

Amendments of the Criminal Appeal Act 1995

2
After section 12 of the Criminal Appeal Act 1995 (c. 35) insert—

“12A
Cases dealt with by the Court Martial

(1)
Where a person has been convicted by the Court Martial (including on

an appeal brought from the Service Civilian Court), the

Commission—

(a)
may at any time refer the conviction to the Court Martial

Appeal Court, and

(b)
(whether or not they refer the conviction) may at any time

refer to the Court Martial Appeal Court any sentence (other

than one fixed by law) imposed by the Court Martial on, or in

subsequent proceedings relating to, the conviction.

(2)
Where a person has been convicted by the Service Civilian Court and

sentenced by the Court Martial on an appeal against sentence only, the

Commission may at any time refer to the Court Martial Appeal Court

that sentence of the Court Martial and any other sentence imposed by

the Court Martial in respect of a connected conviction within the

meaning given by section 12B(6).

(3)
A reference under subsection (1) of a person’s conviction shall be

treated for all purposes as an appeal by the person under section 8 of

the Court Martial Appeals Act against the conviction.

(4)
On a reference under subsection (1) of a person’s conviction, the

Commission may give notice to the Court Martial Appeal Court that

any related conviction specified in the notice is to be treated as referred

to that court under subsection (1).

(5)
A reference under subsection (1) of a sentence imposed on, or in

subsequent proceedings relating to, a person’s conviction shall be

treated for all purposes as an appeal by the person under section 8 of

the Court Martial Appeals Act against—

(a)
the sentence, and

(b)
any other sentence (other than one fixed by law) imposed by

the Court Martial on, or in subsequent proceedings relating to,

the conviction or any related conviction.

(6)
A reference under subsection (2) of a person’s sentence shall be

treated for all purposes as an appeal by the person under section 8 of

the Court Martial Appeals Act against—

(a)
the sentence, and

(b)
any other sentence imposed by the Court Martial in respect of

a connected conviction within the meaning given by section

12B(6).

(7)
Where a finding of not guilty by reason of insanity has been made by

the Court Martial in the case of a person, the Commission may at any

time refer the finding to the Court Martial Appeal Court; and a

reference under this subsection shall be treated for all purposes as an

appeal by the person under section 21 of the Court Martial Appeals

Act against the finding.

(8)
Where the Court Martial has found that a person is under a disability

and that he did the act or made the omission charged against him, the

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Armed Forces Bill, continued

Commission may at any time refer either or both of those findings to

the Court Martial Appeal Court; and a reference under this subsection

shall be treated for all purposes as an appeal by the person under

section 24 of the Court Martial Appeals Act against the finding or

findings referred.

(9)
For the purposes of this section convictions are “related” if they are of

the same person in the same proceedings.

12B
Cases dealt with by the Service Civilian Court

(1)
Where a person has been convicted of an offence by the Service

Civilian Court, the Commission—

(a)
may at any time refer the conviction to the Court Martial; and

(b)
(whether or not they refer the conviction) may at any time

refer to the Court Martial any sentence imposed by the Service

Civilian Court on, or in subsequent proceedings relating to,

the conviction.

(2)
A reference under subsection (1) of a person’s conviction shall be

treated for all purposes as an appeal by the person under section 284

of the Armed Forces Act 2006 against the conviction (whether or not

he pleaded guilty).

(3)
A reference under subsection (1) of a sentence imposed on, or in

subsequent proceedings relating to, a person’s conviction shall be

treated for all purposes as an appeal by the person under section 284

of the Armed Forces Act 2006 against—

(a)
the sentence, and

(b)
any other sentence imposed by the Service Civilian Court on,

or in subsequent proceedings relating to, the conviction or any

connected conviction.

(4)
On a reference under subsection (1) of a person’s conviction, the

Commission may give notice to the Court Martial that any connected

conviction which is specified in the notice is to be treated as referred

to the Court Martial under subsection (1).

(5)
On a reference under this section the Court Martial may not impose a

sentence more severe than that imposed by the Service Civilian Court.

(6)
For the purposes of this section convictions are “connected” if they are

of the same person by the same court on the same day.”

3
In section 13(1) of that Act (conditions for making of references), for “12”

substitute “12B”.

4    (1)
Section 14 of that Act (further provisions about references) is amended as

follows.

      (2)
In subsection (1) for “12” substitute “12B”.

      (3)
In subsection (2) for “12” substitute “12B”.

      (4)
In subsection (3)—

(a)
for “9 or 10” substitute “9, 10 or 12A”;

(b)
after “Court of Appeal”, in the first place where it occurs, insert “or,

as the case may be, of the Court Martial Appeal Court”;

(c)
for “Court of Appeal”, in the second place where it occurs, substitute

“court to which the reference is made”.

      (5)
In subsection (4) for “12” substitute “12B”.

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Armed Forces Bill, continued

      (6)
In subsection (4A) for “9 or 10” substitute “9, 10 or 12A”.

      (7)
In subsection (4B) after “Court of Appeal” insert “or, as the case may be, the

Court Martial Appeal Court”.

      (8)
In subsection (5) for “11 or 12” substitute “11, 12 or 12B”.

      (9)
In subsection (6) for “12” substitute “12B”.

5    (1)
Section 15 of that Act (investigations for Court of Appeal) is amended as

follows.

      (2)
In the sidenote after “Court of Appeal” insert “and Court Martial Appeal

Court”.

      (3)
In subsection (1)—

(a)
after “a direction” insert “(a “relevant direction”)”;

(b)
after “1980 Act” insert “or by the Court Martial Appeal Court under

section 29A(1) of the Court Martial Appeals Act,”.

      (4)
In subsection (2) for “Court of Appeal” substitute “relevant Court”.

      (5)
In subsection (3)—

(a)
in paragraph (a)—

(i)
for “Court of Appeal” substitute “relevant Court”;

(ii)
for the words from “direction” to “1980 Act” substitute

“relevant direction”;

(b)
in paragraph (b) for “Court of Appeal” substitute “relevant Court”.

      (6)
In subsection (4)—

(a)
for the words from “report to” to “1980 Act” substitute “report to the

relevant Court on the investigation of any matter specified in a

relevant direction”;

(b)
for “Court of Appeal”, in the second place where it occurs, substitute

“relevant Court”.

      (7)
After subsection (7) add—

“(8)
In this section “relevant Court”, in relation to a direction, means the

court that gave the direction.”

6
In section 16 of that Act (assistance in connection with prerogative of mercy),

after subsection (2) add—

“(3)
In subsection (1) “conviction” includes a conviction by the Court

Martial or the Service Civilian Court, and in subsection (2) “case”

includes the case of such a conviction.”

7    (1)
Section 18 of that Act (Government documents etc relating to current or old

cases) is amended as follows.

      (2)
In subsection (2) at the end of paragraph (b) add “or—

“(c)
is considering the case, or has at any earlier time considered

the case, with a view to deciding whether to make a reference

under section 34 of the Court Martial Appeals Act or whether

to recommend the exercise of Her Majesty’s prerogative of

mercy in relation to a conviction by the Court Martial or the

Service Civilian Court.”

      (3)
After subsection (4) add—

“(5)
The Secretary of State shall, if required by the Commission to do so,

give to the Commission any document or other material which—

(a)
contains representations made to him in relation to any case to

which this subsection applies, or

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Armed Forces Bill, continued

(b)
was received by him in connection with any such case

otherwise than from a person serving in a government

department,


and may give to the Commission any document or other material

which is relevant to any such case but does not fall within paragraph

(a) or (b).

(6)
Subsection (5) applies to a case if the Secretary of State is considering

the case, or has at any earlier time considered the case, as mentioned

in subsection (2)(c).”

8    (1)
Section 19 of that Act (power to require appointment of investigating officers)

is amended as follows.

      (2)
In subsection (3) after “police” insert “or Provost Marshal”.

      (3)
In subsection (4)(b) for the words from “in another” to the end substitute

“either in another police force selected by the chief officer or in a service police

force selected by him.”

      (4)
After subsection (4) insert—

“(4A)
A requirement under this section imposed on a Provost Marshal may

be—

(a)
a requirement to appoint a person serving in the service police

force in relation to which he is Provost Marshal, or

(b)
a requirement to appoint a person serving either in a police

force selected by the Provost Marshal or in another service

police force selected by him.”

      (5)
In subsection (5)—

(a)
for the words from “imposed” to “may be” substitute “imposed

otherwise than on a chief officer of police or a Provost Marshal may

be”;

(b)
in paragraph (a) after “body” insert “in relation to which the person on

whom the requirement is imposed is the appropriate person”;

(c)
in paragraph (b) for the words from “police force” to “having”

substitute “police force or service police force, or in a public body

(other than such a force) having”.

      (6)
In subsection (6)—

(a)
after “police force” insert “or service police force”;

(b)
after “(4)” insert “, (4A)”.

9    (1)
Section 22 of that Act (meaning of “public body” etc) is amended as follows.

      (2)
In subsection (4) (meaning of “the appropriate person”), after “means” insert

“, subject to subsection (4B)”.

      (3)
After subsection (4) add—

“(4A)
Subsection (4B) applies in relation to—

(a)
the Royal Navy, the Royal Marines, the Royal Fleet Reserve,

the Royal Naval Reserve and the Royal Marines Reserve,

(b)
the regular army (within the meaning of the Armed Forces Act

2006), the Army Reserve and the Territorial Army, and

(c)
the Royal Air Force, the Royal Air Force Reserve and the

Royal Auxiliary Air Force.

(4B)
In relation to a public body mentioned in subsection (4A), “the

appropriate person” means—

(a)
in section 17, the Secretary of State;

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Armed Forces Bill, continued

(b)
in sections 19 and 20—

(i)
in the case of a body mentioned in subsection (4A)(a),

the Provost Marshal for the Royal Navy Police,

(ii)
in the case of a body mentioned in subsection (4A)(b),

the Provost Marshal for the Royal Military Police,

(iii)
in the case of a body mentioned in subsection (4A)(c),

the Provost Marshal for the Royal Air Force Police.

(4C)
In section 19 “service police force” has the same meaning as in the

Armed Forces Act 2006.”

10  (1)
Section 30 of that Act is amended as follows.

      (2)
In subsection (1) after the definition of “the Commission” insert—

““the Court Martial Appeals Act” means the Court Martial Appeals Act

1968,”.

      (3)
In subsection (2) (meaning of “sentence”), after paragraph (d) add—

“(e)
in section 12A has the same meaning as in the Court Martial

Appeals Act,

(f)
in section 12B has the same meaning as in section 284 of the

Armed Forces Act 2006.”

11  (1)
In section 33 of that Act (extent), after subsection (4) add—

“(5)
Nothing in this section affects the extent of—

(a)
section 12A or 12B;

(b)
section 14(4A) and (4B) so far as relating to the Court Martial

Appeal Court; or

(c)
section 14(5) so far as relating to the Service Civilian Court.

(6)
Section 373 of the Armed Forces Act 2006 (Channel Islands, Isle of

Man and British overseas territories) applies in relation to the

provisions mentioned in subsection (5) above as it applies in relation

to that Act.”’.

Mr Don Touhig

Agreed to  NS2

To move the following Schedule:—

‘Protection of children of service families

1    (1)
Section 17 of the Armed Forces Act 1991 (power to make service family child

assessment orders) is amended as follows.

      (2)
In subsection (1)(a) for “civilian in a corresponding position” substitute

“civilian subject to service discipline”.

      (3)
In subsection (3) for “the officer having jurisdiction” substitute “a judge

advocate”.

      (4)
In subsection (5)—

(a)
for “the officer” substitute “the judge advocate”;

(b)
for “an officer” substitute “a judge advocate”.

2    (1)
Section 18 of that Act (content, effect, variation and discharge of assessment

orders) is amended as follows.

      (2)
In subsection (2)(b) for “officer” substitute “judge advocate”.

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Armed Forces Bill, continued

      (3)
In subsection (6) for “officer” substitute “judge advocate”.

      (4)
In subsection (8)—

(a)
for “or a civilian in a corresponding position who” substitute “, or a

civilian subject to service discipline, commits an offence if he”;

(b)
omit the words “on him”;

(c)
omit the words from “shall be liable” to the end.

      (5)
After that subsection insert—

“(8A)
A person guilty of an offence under this section is liable to any

punishment mentioned in rows 5 to 12 of the Table in section 163 of

the Armed Forces Act 2006.

(8B)
For the purposes of determining the Court Martial’s powers when

sentencing a civilian offender (within the meaning of Part 1 of

Schedule 3 to the Armed Forces Act 2006) for an offence under this

section, subsection (8A) has effect as if the reference to rows 5 to 12

were to rows 2 to 7.

(8C)
For the purposes of determining the Court Martial’s powers when

sentencing an offender to whom Part 2 of that Schedule applies (ex-

servicemen etc) for an offence under this section, subsection (8A) has

effect as if the reference to rows 5 to 12 were to rows 5 to 10.”

      (6)
Omit subsection (9).

3    (1)
Section 19 of that Act (power to make orders for the emergency protection of

children of service families) is amended as follows.

      (2)
In subsection (1)(a) for “civilian in a corresponding position” substitute

“civilian subject to service discipline”.

      (3)
In subsection (3) for “the officer having jurisdiction” substitute “a judge

advocate”.

      (4)
In subsection (4) for “officer”, in both places, substitute “judge advocate”.

4    (1)
Section 20 of that Act (content and effect of protection orders) is amended as

follows.

      (2)
In subsection (4) for “officer” substitute “judge advocate”.

      (3)
In subsection (6)(b)(iii) for “the officer having jurisdiction” substitute “a judge

advocate”.

      (4)
For subsections (9) and (10) substitute—

“(9)
A person subject to service law, or a civilian subject to service

discipline, commits an offence if he—

(a)
intentionally obstructs any person exercising the power under

subsection (2)(b) above to remove, or prevent the removal of,

a child; or

(b)
intentionally fails to comply with an exclusion requirement

included in a protection order by virtue of section 20A below.

(9A)
A person guilty of an offence under this section is liable to any

punishment mentioned in rows 5 to 12 of the Table in section 163 of

the Armed Forces Act 2006.

(9B)
For the purposes of determining the Court Martial’s powers when

sentencing a civilian offender (within the meaning of Part 1 of

Schedule 3 to the Armed Forces Act 2006) for an offence under this

section, subsection (9A) has effect as if the reference to rows 5 to 12

were to rows 2 to 7.

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(9C)
For the purposes of determining the Court Martial’s powers when

sentencing an offender to whom Part 2 of that Schedule applies (ex-

servicemen etc) for an offence under this section, subsection (9A) has

effect as if the reference to rows 5 to 12 were to rows 5 to 10.”

5
After that section insert—

“20A
Power to include exclusion requirement in protection order

(1)
Where—

(a)
a judge advocate (on being satisfied as mentioned in section

19(3)(a), (b) or (c)) makes a protection order with respect to a

child, and

(b)
conditions A, B and C are satisfied,


the judge advocate may include an exclusion requirement in the

protection order.

(2)
An exclusion requirement is any one or more of the following—

(a)
a provision requiring a person who is subject to service law or

is a civilian subject to service discipline to leave relevant

premises in which he is living with the child;

(b)
a provision prohibiting a person who is subject to service law

or is a civilian subject to service discipline from entering

relevant premises in which the child lives;

(c)
a provision excluding such a person from a defined area in

which relevant premises in which the child lives are situated.

(3)
Condition A is that there is reasonable cause to believe that, if the

person to whom the exclusion requirement would relate (“the relevant

person”) is excluded from relevant premises in which the child lives—

(a)
in the case of an order made on the ground mentioned in

section 19(3)(a) or (b), the child will not be likely to suffer

significant harm, even though not removed as mentioned in

section 19(3)(a) or not remaining as mentioned in section

19(3)(b);

(b)
in the case of an order made on the ground mentioned in

section 19(3)(c), the enquiries referred to there will cease to be

frustrated.

(4)
Condition B is that a person (other than the relevant person) living in

the relevant premises in which the child lives, whether or not he is the

child’s parent—

(a)
is able and willing to give to the child the care which it would

be reasonable to expect a parent to give him; and

(b)
consents to the inclusion of the exclusion requirement.

(5)
Condition C is that the judge advocate is satisfied—

(a)
that, throughout the duration of the requirement, alternative

accommodation which the judge advocate considers

appropriate will be available to the relevant person; and

(b)
where the relevant person is subject to service law, that the

relevant person’s commanding officer also considers that that

accommodation is appropriate.

(6)
If, while a protection order containing an exclusion requirement is in

force, the child has in pursuance of the order been removed from the

relevant premises to which the requirement relates to other