Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 4 — Custody
Chapter 1 — Custody without Charge
47

99
Authorisation by commanding officer of custody without charge
(1)
Where a person is arrested under section 67—
(a)
the arrest, and
(b)
any grounds on which he is being kept in service custody without being
charged with a service offence,
5

must be reported as soon as practicable to his commanding officer.
(2)
Until such a report is made, the person may be kept in service custody without
being charged with a service offence, but only if the person who made the
arrest has reasonable grounds for believing that keeping him in service
custody without being charged is necessary—
10
(a)
to secure or preserve evidence relating to a service offence for which he
is under arrest; or
(b)
to obtain such evidence by questioning him.
(3)
After receiving a report under subsection (1), the commanding officer must as
soon as practicable determine—
15
(a)
whether the requirements of subsection (4) are satisfied; and
(b)
if so, whether to exercise his powers under that subsection;
and the person to whom the report relates may be kept in service custody for
such period as is necessary to enable the commanding officer to make that
determination.
20
(4)
If, in relation to the person to whom the report relates, the commanding officer
has reasonable grounds for believing—
(a)
that keeping him in service custody without being charged with a
service offence is necessary to secure or preserve evidence relating to a
service offence for which he is under arrest or to obtain such evidence
25
by questioning him, and
(b)
that the investigation is being conducted diligently and expeditiously,

he may authorise the keeping of that person in service custody.
(5)
Subject to subsection (6), an authorisation under subsection (4) ends not more
than 12 hours after it is given.
30
(6)
Except in accordance with section 101 or 102, a person may not be kept in
service custody later than 48 hours after the arrest without being charged with
a service offence.
(7)
Where a person, while kept in service custody without being charged with a
service offence, is arrested under section 67 for another service offence—
35
(a)
subsections (1) to (5) apply in relation to the arrest for that other offence;
(b)
the reference in subsections (2)(a) and (4)(a) to a service offence for
which he is under arrest includes the service offence for which he was
originally arrested;
(c)
the reference in subsection (6) to the arrest is to be read as a reference to
40
the arrest for the service offence for which he was originally arrested;
and
(d)
the last authorisation under subsection (4) (if any) given in relation to
him ceases to have effect (and accordingly section 100 ceases to apply
in relation to that authorisation).
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Armed Forces Bill
Part 4 — Custody
Chapter 1 — Custody without Charge
48

100
Review of custody by commanding officer
(1)
The commanding officer of a person kept in service custody in accordance with
section 99 must, subject to subsections (3) and (4), review the keeping of that
person in service custody not later than the end of the period for which it is
authorised.
5
(2)
Subsections (4) and (5) of section 99 apply on each review under this section as
they apply where a report is received under section 99(1).
(3)
A review may be postponed if, having regard to all the circumstances
prevailing at the expiry of the last authorisation under section 99(4), it is not
practicable to carry out the review at that time.
10
(4)
A review may also be postponed if at the expiry of the last authorisation under
section 99(4)—
(a)
the person in service custody is being questioned and the commanding
officer is satisfied that an interruption of the questioning for the
purpose of carrying out the review would prejudice the investigation
15
in connection with which the person is being questioned; or
(b)
the commanding officer is not readily available.
(5)
Subsection (4) does not limit the power to postpone under subsection (3).
(6)
If a review is postponed under subsection (3) or (4)—
(a)
it must be carried out as soon as practicable after the expiry of the last
20
authorisation under section 99(4); and
(b)
the keeping in service custody of the person to whom the review relates
is by virtue of this paragraph authorised until that time.
101
Extension by judge advocate of custody without charge
(1)
If, on an application by the commanding officer of a person arrested under
25
section 67, a judge advocate is satisfied that there are reasonable grounds for
believing that the continued keeping of that person in service custody is
justified, the judge advocate may by order authorise the keeping of that person
in service custody.
(2)
A judge advocate may not hear an application under this section unless the
30
person to whom it relates—
(a)
has been informed in writing of the grounds for the application; and
(b)
has been brought before him for the hearing.
(3)
The person to whom the application relates is entitled to be legally represented
at the hearing and, if he is not so represented but wishes to be so represented—
35
(a)
the judge advocate must adjourn the hearing to enable him to obtain
representation; and
(b)
he may be kept in service custody during the adjournment.
(4)
The period for which a judge advocate, on an application under this section,
may authorise the keeping of a person in service custody is such period, ending
40
not more than 96 hours after the arrest, as he considers appropriate having
regard to the evidence before him.
(5)
Where a person, while kept in service custody without being charged with a
service offence, is arrested under section 67 for another service offence, the

Armed Forces Bill
Part 4 — Custody
Chapter 1 — Custody without Charge
49

reference in subsection (4) to the arrest is to be read as a reference to the arrest
for the service offence for which he was originally arrested.
(6)
For the purposes of this section and section 102, the continued keeping of a
person in service custody is justified only if—
(a)
keeping him in custody without being charged with a service offence is
5
necessary to secure or preserve evidence relating to a service offence for
which he is under arrest or to obtain such evidence by questioning him;
and
(b)
the investigation is being conducted diligently and expeditiously.
102
Further provision about applications under section 101
10
(1)
Subject to subsection (2), an application under section 101 may be made—
(a)
at any time before the end of 48 hours after the arrest; or
(b)
if it is not practicable for the application to be heard before the end of
that period, as soon as practicable thereafter but not more than 96 hours
after the arrest.
15
(2)
Where subsection (1)(b) applies, an authorisation on a review under section
100 may be for a period ending more than 48 hours after the arrest, but may not
be—
(a)
for a period of more than six hours; or
(b)
for a period ending more than 96 hours after the arrest.
20
(3)
If—
(a)
an application under section 101 is made more than 48 hours after the
arrest, and
(b)
it appears to the judge advocate that it would have been reasonable for
the commanding officer to make the application before the end of that
25
period,
the judge advocate must refuse the application.
(4)
Where on an application under section 101 relating to any person the judge
advocate is not satisfied that there are reasonable grounds for believing that the
continued keeping of that person in service custody is justified, he must—
30
(a)
refuse the application; or
(b)
adjourn the hearing of it until a time not later than 48 hours after the
arrest.
(5)
The person to whom the application relates may be kept in service custody
during the adjournment.
35
(6)
Where a judge advocate refuses an application under section 101 at any time
less than 48 hours after the arrest, he may direct that the person to whom it
relates must, without delay, be charged with a service offence or released from
service custody.
(7)
Where a judge advocate refuses an application under section 101 at any later
40
time, he must direct that the person to whom it relates must, without delay, be
charged with a service offence or released from service custody.
(8)
Where a person, while kept in service custody without being charged with a
service offence, is arrested under section 67 for another service offence, any

Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
50

reference in this section to the arrest is to be read as a reference to the arrest for
the service offence for which he was originally arrested.
103
Custody without charge: other cases
Sections 98 to 102 apply—
(a)
where a person is transferred to or taken into service custody under
5
section 311(4), 313(4), 314(3) or 315(4), and
(b)
in any other case where a person arrested by a member of a UK police
force or overseas police force is transferred to service custody,
as they apply where a person is arrested under section 67, subject to such
modifications as the Secretary of State may by order prescribe.
10
104
Custody without charge: supplementary
(1)
The Secretary of State may by regulations make provision—
(a)
for the delegation by the commanding officer of a person in service
custody of any of the commanding officer’s functions under sections 98
to 102;
15
(b)
with respect to circumstances in which a person kept in service custody
without being charged with a service offence is to be informed of, or
given an opportunity to make representations about, any matter;
(c)
for the keeping of written records relating to compliance with any
requirement of sections 69(3)(a) and 98 to 102 or of regulations under
20
paragraph (b).
(2)
Any reference in sections 99 to 102 to a period of time is to be treated as
approximate only.
Chapter 2
Custody etc after Charge
25
Custody after charge
105
Custody after charge
(1)
Where a person (referred to in this section and sections 106 to 109 as “the
accused”) is kept in service custody after being charged with a service offence,
he must be brought before a judge advocate as soon as practicable.
30
(2)
At a hearing under subsection (1), the judge advocate may by order authorise
the keeping of the accused in service custody, but only if one or more of
conditions A to C in section 106 are met.
(3)
The period for which a judge advocate may, by an order under subsection (2),
authorise the keeping of the accused in service custody is such period, ending
35
not later than eight days after the day on which the order is made, as he
considers appropriate having regard to the evidence before him.
(4)
For the purpose of deciding whether condition A in section 106 is met, the
judge advocate must have regard to such of the following considerations as
appear to him to be relevant—
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Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
51

(a)
the nature and seriousness of the offence with which the accused is
charged (and the probable method of dealing with him for it),
(b)
the character, antecedents, associations and social ties of the accused,
(c)
the accused’s behaviour on previous occasions while charged with a
service offence and released from service custody or while on bail in
5
criminal proceedings, and
(d)
the strength of the evidence that the accused committed the offence,

as well as to any other considerations which appear to be relevant.
(5)
If—
(a)
the accused is charged with an offence under section 42 as respects
10
which the corresponding offence under the law of England and Wales
is—
(i)
murder,
(ii)
manslaughter,
(iii)
an offence under section 1 of the Sexual Offences Act 2003 (c. 42)
15
(rape), or
(iv)
an attempt to commit an offence within sub-paragraph (i) or
(iii),
(b)
representations are made as to any of the matters mentioned in
condition A in section 106, and
20
(c)
the judge advocate decides not to authorise the keeping of the accused
in service custody,

the judge advocate must state the reasons for his decision and must cause those
reasons to be included in the record of the proceedings.
(6)
An order under subsection (2) does not authorise the keeping of the accused in
25
service custody—
(a)
if the accused is subsequently released from service custody, at any
time after his release; or
(b)
at any time after he is sentenced in respect of the offence with which he
is charged.
30
(7)
Subsection (1) does not apply where the accused is charged with a service
offence at a time when he is kept in service custody by reason of a sentence
passed in respect of a service offence or of an order under subsection (2), unless
that reason ceases to apply.
106
Conditions A to D
35
(1)
Condition A is that the judge advocate is satisfied that there are substantial
grounds for believing that the accused, if released from service custody,
would—
(a)
fail to attend any hearing in the proceedings against him;
(b)
commit an offence while released; or
40
(c)
interfere with witnesses or otherwise obstruct the course of justice,
whether in relation to himself or any other person.
(2)
Condition B is that the judge advocate is satisfied that the accused should be
kept in service custody for his own protection or, if he is aged under 17, for his
own welfare or in his own interests.
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Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
52

(3)
Condition C is that the judge advocate is satisfied that, because of lack of time
since the accused was charged, it has not been practicable to obtain sufficient
information for the purpose of deciding whether condition A or B is met.
(4)
Condition D is that the accused’s case has been adjourned for inquiries or a
report and it appears to the judge advocate that it would be impracticable to
5
complete the inquiries or make the report without keeping the accused in
service custody.
107
Release from custody after charge
(1)
Subsections (2) and (3) apply where, at a hearing under section 105(1), the
judge advocate does not authorise keeping the accused in service custody.
10
(2)
Subject to subsection (3), the accused must be released from service custody
without delay.
(3)
The accused may be required to comply, before release or later, with such
requirements as appear to the judge advocate to be necessary—
(a)
to secure his attendance at any hearing in the proceedings against him;
15
(b)
to secure that he does not commit an offence while released from
custody;
(c)
to secure that he does not interfere with witnesses or otherwise obstruct
the course of justice, whether in relation to himself or any other person;
or
20
(d)
for his own protection or, if he is aged under 17, for his own welfare or
in his own interests.
(4)
On an application made—
(a)
by or on behalf of the accused, or
(b)
by the commanding officer of the accused,
25

any requirement imposed under subsection (3) (including such a requirement
as previously varied under this subsection) may be varied or discharged by a
judge advocate.
(5)
A person on whom a requirement has been imposed by virtue of subsection
(3)(a) commits an offence if, without reasonable excuse, he fails to attend any
30
hearing to which the requirement relates.
(6)
A person guilty of an offence under this section is liable to any punishment
mentioned in the Table in section 163, but any sentence of imprisonment
imposed in respect of the offence must not exceed two years.
108
Review of custody after charge
35
(1)
Where the keeping of the accused in service custody is authorised by an order
under section 105(2), it must be reviewed by a judge advocate not later than the
end of the period for which it is authorised.
(2)
If at any time it appears to the accused’s commanding officer that the grounds
on which such an order was made have ceased to exist, he must—
40
(a)
release the accused from service custody; or
(b)
request a review.
(3)
Where a request is made under subsection (2)(b), a review must be carried out
as soon as practicable.

Armed Forces Bill
Part 4 — Custody
Chapter 2 — Custody etc after Charge
53

(4)
Sections 105(2) to (6), 106 and 107 apply in relation to a review as they apply in
relation to a hearing under section 105(1); but the application of section 105(3)
is subject to subsection (7).
(5)
At the first review the accused may support an application for release from
service custody with any argument as to fact or law (whether or not he has
5
advanced that argument previously).
(6)
At subsequent reviews the judge advocate need not hear arguments as to fact
or law which have been heard previously.
(7)
On a review at a hearing at which the accused is legally represented, the judge
advocate may, if the accused consents, authorise the keeping of the accused in
10
service custody for a period of not more than 28 days.
(8)
In this section “review” means a review under subsection (1).
109
Custody during proceedings of Court Martial or Service Civilian Court
(1)
In relation to a review under section 108(1) which takes place between—
(a)
the arraignment of the accused before the Court Martial or the Service
15
Civilian Court, and
(b)
the conclusion of proceedings before the court,

section 105(2) to (6) (as applied by section 108(4)) apply with the following
modifications.
(2)
The reference in section 105(2) to conditions A to C is to be read as a reference
20
to conditions A to D.
(3)
Where the accused is awaiting sentence—
(a)
references in section 105(4)(a) and (5) to an offence with which the
accused is charged are to be read as references to the offence for which
he is awaiting sentence; and
25
(b)
section 105(4)(d) does not apply.
Arrest after charge
110
Arrest after charge or during proceedings by order of commanding officer
(1)
The commanding officer of a person who—
(a)
has been charged with, or is awaiting sentence for, a service offence,
30
and
(b)
is not in service custody,
may, if satisfied that taking that person into service custody is justified, give
orders for his arrest.
(2)
For the purposes of this section, taking a person into service custody is justified
35
if there are reasonable grounds for suspecting that, if not taken into service
custody, he would—
(a)
fail to attend any hearing in the proceedings against him;
(b)
commit an offence; or
(c)
interfere with witnesses or otherwise obstruct the course of justice,
40
whether in relation to himself or any other person.