Armed Forces Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 4 — Custody
Chapter 3 — Custody Proceedings Rules
54

(3)
Taking a person into service custody is also justified for the purposes of this
section if—
(a)
he has failed to attend any hearing in the proceedings against him;
(b)
there are reasonable grounds for suspecting that he should be taken
into service custody for his own protection or, if he is aged under 17, for
5
his own welfare or in his own interests; or
(c)
there are reasonable grounds for suspecting that—
(i)
if not taken into service custody, he would fail to comply with a
requirement imposed under section 107(3); or
(ii)
he has failed to comply with such a requirement.
10
(4)
A person arrested under subsection (1) who is kept in service custody—
(a)
must as soon as is practicable be brought before a judge advocate for a
review of whether he should continue to be kept in service custody; and
(b)
on that review is to be dealt with as on a review under section 108(1)
(see sections 108(4) to (8) and 109).
15
(5)
Where a power of arrest is conferred on any person by virtue of this section, he
may use reasonable force, if necessary, in the exercise of the power.
111
Arrest during proceedings at direction of court
(1)
Where—
(a)
a person has been arraigned before the Court Martial or the Service
20
Civilian Court, and
(b)
proceedings before the court have not concluded,

a judge advocate, if satisfied that taking him into service custody is justified,
may direct the arrest of that person.
(2)
Any person with power to arrest that person for a service offence has the same
25
power, exercisable in the same way, to arrest him pursuant to a direction under
subsection (1).
(3)
Subsections (2) and (3) of section 110 apply for the purposes of this section.
(4)
A person arrested under this section who is kept in service custody—
(a)
must as soon as is practicable be brought before a judge advocate for a
30
review of whether he should continue to be kept in service custody; and
(b)
on that review is to be dealt with as on a review under section 108(1)
(see sections 108(4) to (8) and 109).
Chapter 3
Custody Proceedings Rules
35
112
Custody proceedings rules
(1)
The Secretary of State may make rules with respect to proceedings—
(a)
on an application under section 101;
(b)
under section 105(1);
(c)
on an application under section 107(4);
40
(d)
on a review under section 108(1), 110(4), 111(4) or 170(2).
(2)
Rules under this section may in particular make provision—

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 1 — Investigation
55

(a)
with respect to arrangements preliminary to the proceedings;
(b)
with respect to the representation of the person to whom the
proceedings relate;
(c)
with respect to evidence, including the admissibility of evidence;
(d)
for procuring the attendance of witnesses;
5
(e)
with respect to the immunities and privileges of witnesses;
(f)
with respect to oaths and affirmations;
(g)
with respect to circumstances in which a review under section 108(1),
110(4), 111(4) or 170(2) may be carried out without a hearing;
(h)
with respect to the use for the purposes of the proceedings of live
10
television or telephone links or similar arrangements, including the use
of such links or other arrangements as a means of satisfying any
requirement imposed by this Act for a person to be brought before a
judge advocate;
(i)
for the appointment of persons to discharge administrative functions
15
under the rules.
Part 5
Investigation, Charging and Mode of Trial
Chapter 1
Investigation
20
Duties of commanding officers
113
CO to ensure service police aware of possibility serious offence committed
(1)
If an officer becomes aware of an allegation or circumstances within subsection
(2), he must as soon as is reasonably practicable ensure that a service police
force is aware of the matter.
25
(2)
An allegation is, or circumstances are, within this subsection if it or they would
indicate to a reasonable person that a Schedule 2 offence has or may have been
committed by a relevant person.
(3)
In subsection (2) “relevant person” means a person whose commanding officer
is the officer mentioned in subsection (1).
30
(4)
In this Chapter “Schedule 2 offence” means a service offence listed in Schedule
2.
(5)
The Secretary of State may by order amend Schedule 2.
114
CO to ensure service police aware of certain circumstances
(1)
If an officer of a prescribed description becomes aware of circumstances of a
35
prescribed description, he must as soon as is reasonably practicable ensure that
a service police force is aware of the matter.
(2)
In this section “prescribed” means prescribed by regulations under section 127.

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 1 — Investigation
56

115
Duty of CO with respect to investigation of service offences
(1)
This section applies where—
(a)
an officer becomes aware of an allegation or circumstances within
subsection (2); and
(b)
the officer is not required by section 113(1) or 114(1) to ensure that a
5
service police force is aware of the matter.
(2)
An allegation is, or circumstances are, within this subsection if it or they would
indicate to a reasonable person that a service offence has or may have been
committed by a relevant person.
(3)
In subsection (2) “relevant person” means a person whose commanding officer
10
is the officer mentioned in subsection (1).
(4)
The officer must either—
(a)
ensure that the matter is investigated in such way and to such extent as
is appropriate; or
(b)
ensure, as soon as is reasonably practicable, that a service police force
15
is aware of the matter.
(5)
Subsection (4) does not apply if the matter has already been investigated in
such way and to such extent as is appropriate.
Duty of service policeman following investigation
116
Referral of case following investigation by service or civilian police
20
(1)
This section applies where—
(a)
a service police force has investigated an allegation which indicates, or
circumstances which indicate, that a service offence has or may have
been committed; or
(b)
a UK police force or overseas police force has investigated such an
25
allegation or such circumstances and has referred the matter to a
service police force.
(2)
If—
(a)
a service policeman considers that there is sufficient evidence to charge
a person with a Schedule 2 offence, or
30
(b)
a service policeman considers that there is sufficient evidence to charge
a person with any other service offence, and is aware of circumstances
of a description prescribed by regulations under section 127 for the
purposes of this paragraph,

he must refer the case to the Director of Service Prosecutions (“the Director”).
35
(3)
If—
(a)
a service policeman considers that there is sufficient evidence to charge
a person with a service offence, and
(b)
subsection (2) does not apply,

he must refer the case to the person’s commanding officer.
40
(4)
If—
(a)
the allegation or circumstances gave rise to the duty under section
113(1) or 114(1), and

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 2 — Charging and Mode of Trial
57

(b)
a service policeman proposes not to refer the case to the Director under
subsection (2),

he must consult the Director as soon as is reasonably practicable (and before
any referral of the case under subsection (3)).
(5)
For the purposes of subsections (2) and (3) there is sufficient evidence to charge
5
a person with an offence if, were the evidence suggesting that the person
committed the offence to be adduced in proceedings for the offence, the person
could properly be convicted.
117
Section 116: position where investigation is of multiple offences or offenders
(1)
This section applies where the investigation mentioned in section 116(1) relates
10
to two or more incidents (or alleged incidents) or the conduct (or alleged
conduct) of two or more persons.
(2)
Each person’s conduct in relation to each incident is to be regarded as giving
rise to a separate case.
(3)
If a case is referred under section 116(2) to the Director of Service
15
Prosecutions—
(a)
any other case of a description prescribed by regulations under section
127 for the purposes of this paragraph is to be treated as referred under
section 116(2) to the Director of Service Prosecutions; and
(b)
nothing in section 116(3) or (4) applies in relation to any case treated as
20
so referred.
Chapter 2
Charging and Mode of Trial
Powers of charging etc
118
Circumstances in which CO has power to charge etc
25
(1)
This section sets out the circumstances in which a commanding officer has
initial powers (defined by section 119) in respect of a case.
(2)
If a commanding officer of a person becomes aware of an allegation which
indicates, or circumstances which indicate, that the person has or may have
committed a service offence, he has initial powers in respect of the case.
30
(3)
Subsection (2) does not apply if the allegation or circumstances—
(a)
give or have given rise to the duty under section 113(1) or 114(1);
(b)
are being or have been investigated by a service police force; or
(c)
are being or have been investigated by a UK police force or overseas
police force, and it appears to the commanding officer that that force
35
may refer the matter to the service police.
(4)
A commanding officer has initial powers in respect of a case which a service
policeman has referred to him under section 116(3) (referral of case following
investigation by service or civilian police).

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 2 — Charging and Mode of Trial
58

(5)
A commanding officer has initial powers in respect of a case which the Director
of Service Prosecutions has referred to him under section 120(4) (referral of
case by DSP).
(6)
If an allegation or circumstances mentioned in subsection (2) relate to two or
more incidents (or alleged incidents) or the conduct (or alleged conduct) of two
5
or more persons, each person’s conduct in relation to each incident is to be
regarded as giving rise to a separate case.
119
Power of CO to charge etc
(1)
Subsections (2) and (3) apply where under section 118 a commanding officer
has initial powers in respect of a case.
10
(2)
The officer may bring, in respect of the case, one or more charges that are
capable of being heard summarily (see section 52).
(3)
The officer may refer the case to the Director of Service Prosecutions.
(4)
A charge brought under subsection (2) is to be regarded for the purposes of this
Part as allocated for summary hearing.
15
(5)
Where an officer refers a case under subsection (3), any other case—
(a)
which is of a description prescribed by regulations under section 127
for the purposes of this subsection, and
(b)
as respects which the officer has initial powers,

is to be treated as referred under subsection (3) to the Director of Service
20
Prosecutions.
120
Power of DSP to direct bringing of charge etc
(1)
The powers in subsections (2) to (5) are exercisable by the Director of Service
Prosecutions (“the Director”) in respect of a case which has been referred to
him under—
25
(a)
section 116(2) (referral of case following investigation by service or
civilian police); or
(b)
section 119(3) (referral of case by CO).
(2)
The Director may direct the commanding officer of the person concerned to
bring, in respect of the case, such charge or charges against him as may be
30
specified in the direction.
(3)
If—
(a)
the Director makes a direction under subsection (2), and
(b)
the Service Civilian Court has jurisdiction to try the charge specified in
the direction,
35

the Director may allocate the charge for trial by that court.
(4)
The Director may refer the case to the commanding officer of the person
concerned, but only if he has decided that it would not be appropriate to make
a direction under subsection (2) in respect of it.
(5)
The Director may make a direction under section 126(1) or (2) (directions
40
barring further proceedings) in respect of any offence as regards which he
could make a direction under subsection (2).