Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 3 — Powers of Arrest, Search and Entry
Chapter 2 — Stop and Search
37

78
Places in which powers under sections 75 and 76 may be exercised
The powers conferred by sections 75 and 76 may be exercised only in—
(a)
any place to which (at the time of exercise of the power) the public or
any section of the public has access, on payment or otherwise, as of
right or by virtue of express or implied permission;
5
(b)
any other place to which people have ready access (at the time of
exercise of the power) but which is not a dwelling or service living
accommodation; and
(c)
any premises which (at the time of exercise of the power) are
permanently or temporarily occupied or controlled for the purposes of
10
any of Her Majesty’s forces but are not service living accommodation.
79
Sections 75 and 76: limitation on searching persons or vehicles in certain
gardens etc
(1)
Subsection (2) applies if a person (“A”) is in a garden or yard, or on other land,
occupied with and used for the purposes of—
15
(a)
a dwelling; or
(b)
any service living accommodation within section 96(1)(a).
(2)
A person (“B”) may not by virtue of section 78(a) or (b) search A in the exercise
of the power conferred by section 75 or 76 unless B has reasonable grounds for
believing—
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(a)
that A does not reside in the dwelling or service living accommodation;
and
(b)
that A is not in the place in question with the express or implied
permission of a person who resides in the dwelling or service living
accommodation.
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(3)
Subsection (4) applies if a vehicle is in a garden or yard, or on other land,
occupied with and used for the purposes of—
(a)
a dwelling; or
(b)
any service living accommodation within section 96(1)(a).
(4)
A person may not by virtue of section 78(a) or (b) search the vehicle or anything
30
in or on it in the exercise of the power conferred by section 75 or 76 unless he
has reasonable grounds for believing—
(a)
that the person in charge of the vehicle does not reside in the dwelling
or service living accommodation; and
(b)
that the vehicle is not in the place in question with the express or
35
implied permission of a person who resides in the dwelling or service
living accommodation.
(5)
In this section “dwelling” does not include any dwelling which is permanently
or temporarily occupied or controlled for the purposes of any of Her Majesty’s
forces.
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80
Searches under sections 75 and 76: supplementary
(1)
The time for which a person or vehicle may be detained for the purposes of a
search under section 75 or 76 is such time as is reasonably required to permit a
search to be carried out either at the place where the person or vehicle was first
detained or nearby.
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Armed Forces Bill
Part 3 — Powers of Arrest, Search and Entry
Chapter 3 — Powers of Entry, Search and Seizure
38

(2)
Nothing in section 75 or 76 authorises anyone to require a person to remove
any of his clothing in public other than an outer coat, jacket, headgear or
gloves.
(3)
The reference in subsection (2) to headgear does not include headgear worn for
religious purposes.
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(4)
Nothing in this Chapter limits the powers exercisable on any premises if, or to
the extent that, the premises are being used for keeping persons in service
custody.
81
Power to make further provision about searches under sections 75 and 76
The Secretary of State may by order make provision, in relation to the search of
10
persons or vehicles under section 75 or 76, which is equivalent to that made by
any provision of—
(a)
section 2(1) to (7) and (9)(b) of PACE (provisions relating to search
under section 1 of that Act and other powers), and
(b)
section 3 of PACE (duty to make records concerning searches),
15
subject to such modifications as the Secretary of State considers appropriate.
82
Application of Chapter to ships and aircraft
This Chapter applies to ships and aircraft as it applies to vehicles.
Chapter 3
Powers of Entry, Search and Seizure
20
Entry for purposes of obtaining evidence etc
83
Power of judge advocate to authorise entry and search
(1)
A judge advocate may issue a warrant authorising a service policeman to enter
and search premises if—
(a)
an application for the warrant, specifying the premises, is made by a
25
service policeman; and
(b)
the judge advocate is satisfied that the premises are relevant residential
premises and that there are reasonable grounds for believing—
(i)
that a relevant offence has been committed;
(ii)
that there is on the premises material which is likely to be of
30
substantial value (whether by itself or together with other
material) to the investigation of the offence;
(iii)
that the material would be likely to be admissible in evidence at
a trial for the offence;
(iv)
that it does not consist of or include items subject to legal
35
privilege, excluded material or special procedure material; and
(v)
that any of the conditions mentioned in subsection (2) applies.
(2)
Those conditions are—
(a)
that it is not practicable to communicate with any person entitled to
grant entry to the premises;
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Armed Forces Bill
Part 3 — Powers of Arrest, Search and Entry
Chapter 3 — Powers of Entry, Search and Seizure
39

(b)
that it is practicable to communicate with a person entitled to grant
entry to the premises but it is not practicable to communicate with any
person entitled to grant access to the evidence;
(c)
that entry to the premises will not be granted unless a warrant is
produced;
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(d)
in the case of service living accommodation within section 96(1)(b) or
(c)—
(i)
that it is not practicable to communicate with the person or (as
the case may be) any of the persons for whom the
accommodation is provided; or
10
(ii)
that there is no such person with whom it is practicable to
communicate who will agree to grant access to the
accommodation without the production of a warrant;
(e)
that the purpose of a search may be frustrated or seriously prejudiced
unless a service policeman arriving at the premises can secure
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immediate entry to them.
(3)
A service policeman may seize and retain anything for which a search has been
authorised under subsection (1).
84
Section 83: definitions
(1)
Subsections (2) to (4) apply for the purposes of section 83.
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(2)
“Relevant offence” means any of the following—
(a)
an offence under section 42 as respects which the corresponding
offence under the law of England and Wales is an indictable offence;
(b)
a service offence specified for the purposes of this subsection in an
order made by the Secretary of State;
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(c)
a service offence whose commission has led to, or is intended or is
likely to lead to, any of the consequences mentioned in subsection (5).
(3)
“Relevant residential premises” means—
(a)
service living accommodation; or
(b)
premises occupied as a residence (alone or with other persons) by—
30
(i)
a person subject to service law;
(ii)
a civilian subject to service discipline; or
(iii)
a person who is suspected of having committed an offence in
relation to which the warrant is sought.
(4)
“Items subject to legal privilege”, “excluded material” and “special procedure
35
material” have the meanings given (respectively) by sections 10, 11 and 14 of
PACE, but as if in section 11(2)(b) of PACE “enactment” included any
provision of—
(a)
an Act of the Scottish Parliament or Northern Ireland legislation; or
(b)
an instrument made under such an Act or under Northern Ireland
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legislation.
(5)
The consequences referred to in subsection (2)(c) are—
(a)
serious harm to the security of the State or to public order;
(b)
serious interference with the administration of justice or with the
investigation of offences or of a particular offence;
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(c)
the death of any person;

Armed Forces Bill
Part 3 — Powers of Arrest, Search and Entry
Chapter 3 — Powers of Entry, Search and Seizure
40

(d)
serious injury to any person;
(e)
substantial financial gain to any person;
(f)
serious financial loss to any person;
(g)
the undermining of discipline or morale among members of any of Her
Majesty’s forces.
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(6)
In subsection (5)(d) “injury” includes any disease and any impairment of a
person’s physical or mental condition.
(7)
For the purposes of subsection (5)(f), loss is serious if (having regard to all the
circumstances) it is serious for the person who suffers it.
85
Section 83: power to make supplementary provision
10
The Secretary of State may by order—
(a)
make provision authorising the use, in connection with applications
under section 83 to judge advocates, of live television or telephone links
or similar arrangements;
(b)
make provision, in relation to warrants issued under that section or
15
entry and search under such a warrant, which is equivalent to that
made by any provision of sections 15 and 16 of PACE (which relate to
the issue to constables of warrants to enter and search premises),
subject to such modifications as the Secretary of State considers
appropriate.
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86
Power to make provision as to access to excluded material etc
(1)
The Secretary of State may by order make provision enabling a service
policeman to obtain access to excluded material or special procedure material
on relevant residential premises, for the purpose of an investigation of a
relevant offence, by making an application in accordance with the order to a
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judge advocate.
(2)
An order under this section may in particular—
(a)
provide for any provision of Schedule 1 to PACE (which relates to
applications by constables to judges for access to excluded material or
special procedure material) to apply (with modifications) for the
30
purposes of the order;
(b)
authorise the use, in connection with any application made by virtue of
the order, of live television or telephone links or similar arrangements.
(3)
In this section “relevant residential premises” means—
(a)
service living accommodation; or
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(b)
premises occupied as a residence (alone or with other persons) by—
(i)
a person subject to service law;
(ii)
a civilian subject to service discipline; or
(iii)
a person who is suspected of having committed the relevant
offence concerned.
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(4)
In this section “excluded material”, “special procedure material” and “relevant
offence” have the meanings given by section 84.