06246.12-18

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

12

“Pardons for servicemen executed for disciplinary offences: recognition as

victims of First World War

(1)
This section applies in relation to any person who was executed for a

relevant offence committed during the period beginning with 4 August

1914 and ending with 11 November 1918.

(2)
Each such person is to be taken to be pardoned under this section in respect

of the relevant offence (or relevant offences) for which he was executed.

(3)
In this section “relevant offence” means any of the following—

(a)
an offence under any of the following provisions of the Army Act

1881 (c. 58)—

(i)
section 4(2) (casting away arms etc);

(ii)
section 4(7) (cowardice);

(iii)
section 6(1)(b) (leaving post etc without orders);

(iv)
section 6(1)(k) (sentinel sleeping etc on post or leaving post);

(v)
section 7 (mutiny and sedition);

(vi)
section 8(1) (striking etc superior officer);

(vii)
section 9(1) (disobedience in defiance of authority);

(viii)
section 12(1) (desertion or attempt etc to desert);

(b)
an offence under any of the following provisions of the Indian

Army Act 1911 (Indian Act, No. 8 of 1911)—

(i)
section 25(b) (casting away arms, cowardice, etc);

(ii)
section 25(g) (sentry sleeping on post or quitting post);

(iii)
section 25(i) (quitting guard etc);

(iv)
section 27 (mutiny, disobedience, etc);

(v)
section 29 (desertion or attempt to desert).

(4)
This section does not—

(a)
affect any conviction or sentence;

(b)
give rise to any right, entitlement or liability; or

(c)
affect the prerogative of mercy.

(5)
Any reference in this section to a provision of the Army Act 1881 (c. 58)

includes a reference to that provision as applied by any enactment,

wherever enacted.”
Before Clause 357
52
Insert the following new Clause—

“Judge advocates

In this Act “judge advocate” means—

(a)
the Judge Advocate General;

(b)
a person appointed under section 30(1)(a) or (b) or (2) of the Courts-

Martial (Appeals) Act 1951 (c. 46) (assistants to the Judge Advocate

General); or

(c)
a puisne judge of the High Court in England and Wales who

(following a request by the Judge Advocate General) is nominated

by or on behalf of the Lord Chief Justice of England and Wales to sit

as a judge advocate.”

13

Clause 358
53
Page 180, line 26, leave out “Supreme Court” and insert “Court of Judicature”
Clause 359
54
Page 181, line 11, leave out “Supreme Court” and insert “Court of Judicature”
After Clause 359
55
Insert the following new Clause—

“Service Complaints Commissioner

Service Complaints Commissioner

(1)
There shall be a Service Complaints Commissioner.

(2)
The Service Complaints Commissioner is to be appointed by the Secretary

of State.

(3)
A person may not be appointed as the Service Complaints Commissioner

if he is—

(a)
a member of the regular or reserve forces; or

(b)
a person employed in the civil service of the State.

(4)
The Service Complaints Commissioner shall hold and vacate office in

accordance with the terms of his appointment.

(5)
The Service Complaints Commissioner is not to be regarded—

(a)
as the servant or agent of the Crown; or

(b)
as enjoying any status, immunity or privilege of the Crown.”
Clause 366
56
Page 183, line 25, after “sections” insert “36,”
57
Page 183, line 30, after “89,” insert “113,”
58
Page 183, line 30, leave out “or 372” and insert “, 372 or (alignment of SDAs etc with

this Act)”
59
Page 183, line 31, leave out paragraph (b)
60
Page 183, line 35, leave out “or” and insert—

“( )
regulations under section 127 which make provision of a kind

mentioned in section 127(2)(c) or (e) or prescribe documents for the

purposes of section (Duty of service policeman to notify CO of referral

to DSP)(2)(b),

( )
regulations under section 270, 332(2), 334(5)(a) or (Referral by Service

Complaints Commissioner of certain allegations),

( )
regulations under section 326 which make provision of a kind

mentioned in section 326(2)(c),

( )
rules under section 162 which—

(i)
by virtue of section 154 make provision about the

constitution of the Court Martial, or

14

(ii)
make provision authorised by section (Sentencing powers of

Court Martial where election for trial by that court instead of CO),

or”
61
Page 183, line 39, after “instrument” insert “under this Act”
Clause 367
62
Page 185, line 31, leave out from “advocate”” to end of line 33 and insert “has the

meaning given by section (Judge advocates);”
63
Page 186, line 19, at end insert—

““the Service Complaints Commissioner” means the person

appointed under section (Service Complaints Commissioner);”
After Clause 373
64
Insert the following new Clause—

“Alignment of SDAs etc with this Act

(1)
The Secretary of State may by order amend or repeal any provision of an

enactment within subsection (3) for the purpose of reducing or eliminating

any difference between the effect of the enactments within that subsection

and the effect of this Act.

(2)
An order under subsection (1) may amend an enactment within subsection

(3) in such a way as to confer on any person a power to make subordinate

legislation.

(3)
The enactments are—

(a)
the Army Act 1955 (3 & 4 Eliz. 2 c. 18);

(b)
the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19);

(c)
the Naval Discipline Act 1957 (c. 53);

(d)
the Army and Air Force Act 1961 (c. 52);

(e)
the Armed Forces Act 1966 (c. 45);

(f)
such provisions of the following Acts as are repealed by this Act—

(i)
the Armed Forces Act 1976 (c. 52);

(ii)
the Reserve Forces Act 1980 (c. 9);

(iii)
the Armed Forces Act 1981 (c. 55);

(iv)
the Armed Forces Act 1991 (c. 62);

(v)
the Reserve Forces Act 1996 (c. 14);

(vi)
the Armed Forces Act 2001 (c. 19).”
Clause 375
65
Page 190, line 36, after “sections” insert “(Pardons for servicemen executed for

disciplinary offences: recognition as victims of First World War),”
Schedule 2
66
Page 193, line 20, leave out “subsection (5) of that section applies” and insert “the

accused intended to avoid a period of active service (within the meaning of that

section)”

15
67
Page 193, line 22, leave out “or (2)”
68
Page 193, line 23, leave out from “section” to end of line 24 and insert “33(1)

(dangerous flying etc).”
Schedule 9
69
Page 222, line 9, leave out “Supreme Court” and insert “Court of Judicature”
Schedule 13
70
Page 236, line 7, leave out “Court Martial’s” and insert “court’s”
71
Page 236, line 12, leave out “Court Martial’s” and insert “court’s”
72
Page 236, line 40, leave out “Court Martial’s” and insert “court’s”
73
Page 237, line 1, leave out “Court Martial’s” and insert “court’s”
Schedule 16
74
Page 258, line 16, at end insert—

“Army Act 1955 (3 & 4 Eliz. 2 c. 18)

19A
After section 91 of the Army Act 1955 insert—

“Preliminary hearings as to plea

91A
Preliminary hearings as to plea

(1)
Subsections (2) to (4) apply in relation to a charge against a

person (“the accused”) preferred by the prosecuting authority.

(2)
The accused shall be arraigned at a hearing before a judge

advocate.

(3)
That hearing may take place at any time before the time when the

court-martial that is to try the charge first sits.

(4)
The arraignment is to be treated as having occurred before the

court-martial.

(5)
Rules under section 103 may make provision for and in

connection with the making of orders and rulings by a judge

advocate at a hearing at which the accused is arraigned,

including in particular—

(a)
provision corresponding to any provision of, or that may

be made by virtue of, sections 31, 33, 34 and 37 of the

Criminal Procedure and Investigations Act 1996, subject

to such modifications as the Secretary of State considers

appropriate;

(b)
provision for the variation or discharge of such orders

and rulings.

(6)
The reference in subsection (1) to a charge preferred by the

prosecuting authority includes—

(a)
a charge substituted by the prosecuting authority; and

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(b)
where a charge is amended by the prosecuting authority

before the accused is arraigned in respect of it, the charge

as so amended.

(7)
Nothing in this section applies in relation to a charge preferred or

substituted after the time when the court-martial first sits.”

19B(1)
Section 103 of that Act (rules) is amended as follows.

      (2)
In subsection (2)—

(a)
after paragraph (b) insert—

“(ba)
appeals against orders or rulings made in

preliminary proceedings;”;

(b)
after paragraph (mm) insert—

“(mn)
appeals against any orders (including directions)

of courts-martial prohibiting or restricting the

publication of any matter or excluding the public

from any proceedings;”.

      (3)
After subsection (2) insert—

“(2A)
In subsection (2)(a), (b) and (ba), the references to proceedings

preliminary to trials include hearings at which the accused is

arraigned.

(2B)
Rules made by virtue of subsection (2)(ba) or (mn) may confer

jurisdiction on the Courts-Martial Appeal Court, and rules under

section 49 of the Courts-Martial (Appeals) Act 1968 may make

provision about the powers of that court in relation to appeals

made by virtue of subsection (2)(ba) or (mn).”

19C
In section 120 of that Act (suspension of sentences), after subsection (7)

insert—

“(7A)
Subsection (5) does not apply if the person was tried by court-

martial for the fresh offence in pursuance of an election for court-

martial trial.”

Air Force Act 1955 (3 & 4 Eliz. 2 c. 19)

19D
After section 91 of the Air Force Act 1955 insert—

“Preliminary hearings as to plea

91A
Preliminary hearings as to plea

(1)
Subsections (2) to (4) apply in relation to a charge against a

person (“the accused”) preferred by the prosecuting authority.

(2)
The accused shall be arraigned at a hearing before a judge

advocate.

(3)
That hearing may take place at any time before the time when the

court-martial that is to try the charge first sits.

(4)
The arraignment is to be treated as having occurred before the

court-martial.

(5)
Rules under section 103 may make provision for and in

connection with the making of orders and rulings by a judge

17

advocate at a hearing at which the accused is arraigned,

including in particular—

(a)
provision corresponding to any provision of, or that may

be made by virtue of, sections 31, 33, 34 and 37 of the

Criminal Procedure and Investigations Act 1996, subject

to such modifications as the Secretary of State considers

appropriate;

(b)
provision for the variation or discharge of such orders

and rulings.

(6)
The reference in subsection (1) to a charge preferred by the

prosecuting authority includes—

(a)
a charge substituted by the prosecuting authority; and

(b)
where a charge is amended by the prosecuting authority

before the accused is arraigned in respect of it, the charge

as so amended.

(7)
Nothing in this section applies in relation to a charge preferred or

substituted after the time when the court-martial first sits.”

19E(1)
Section 103 of that Act (rules) is amended as follows.

      (2)
In subsection (2)—

(a)
after paragraph (b) insert—

“(ba)
appeals against orders or rulings made in

preliminary proceedings;”;

(b)
after paragraph (mm) insert—

“(mn)
appeals against any orders (including directions)

of courts-martial prohibiting or restricting the

publication of any matter or excluding the public

from any proceedings;”.

      (3)
After subsection (2) insert—

“(2A)
In subsection (2)(a), (b) and (ba), the references to proceedings

preliminary to trials include hearings at which the accused is

arraigned.

(2B)
Rules made by virtue of subsection (2)(ba) or (mn) may confer

jurisdiction on the Courts-Martial Appeal Court, and rules under

section 49 of the Courts-Martial (Appeals) Act 1968 may make

provision about the powers of that court in relation to appeals

made by virtue of subsection (2)(ba) or (mn).”

19F
In section 120 of that Act (suspension of sentences), after subsection (7)

insert—

“(7A)
Subsection (5) does not apply if the person was tried by court-

martial for the fresh offence in pursuance of an election for court-

martial trial.”

Naval Discipline Act 1957 (c. 53)

19G
In section 47M of the Naval Discipline Act 1957 (judicial officers), for

“Judge Advocate of Her Majesty’s Fleet”, in both places, substitute

“Judge Advocate General”.

18

19H
In section 52C(4) of that Act (powers of higher authority), for “of the

accused” substitute “or appropriate superior authority”.

19I(1)
Section 52D of that Act (summary trial) is amended as follows.

      (2)
For subsections (2) and (2ZA) substitute—

“(2)
The commanding officer or appropriate superior authority (as

the case may be) shall afford the accused the opportunity of

electing court-martial trial.”

      (3)
In subsection (4) for paragraph (b) substitute—

“(b)
if the accused is an officer below the rank of captain

whose commanding officer satisfies the conditions in

section 52B(6A)(a) and (b), refer the charge back to the

commanding officer of the accused;

(c)
if the accused is an officer other than one within

paragraph (b) above, refer the charge back to the

appropriate superior authority;”.

      (4)
In subsection (4A) for “Subsections (2) and (2ZA) above do not”

substitute “Subsection (2) above does not”.

      (5)
In subsection (4C) for “subsection (2) or (2ZA) above” substitute

“subsection (2) above”.

19J
In section 52FG(1) of that Act (judge advocates of the summary appeal

court), for “Judge Advocate of Her Majesty’s Fleet” substitute “Judge

Advocate General”.

19K
In section 52FJ(3) of that Act (constitution of summary appeal court), for

“Judge Advocate of Her Majesty’s Fleet” substitute “Judge Advocate

General”.

19L
In section 53B(1) of that Act (judge advocate of a court-martial), for

“Judge Advocate of Her Majesty’s Fleet” substitute “Judge Advocate

General”.

19M
In section 53C(2) of that Act (ordering of courts martial), for “Judge

Advocate of Her Majesty’s Fleet” substitute “Judge Advocate General”.

19N(1)
Section 58 of that Act (rules) is amended as follows.

      (2)
In subsection (2)—

(a)
after paragraph (b) insert—

“(ba)
appeals against orders or rulings made in

preliminary proceedings;”;

(b)
after paragraph (nn) insert—

“(no)
appeals against any orders (including directions)

of courts-martial prohibiting or restricting the

publication of any matter or excluding the public

from any proceedings;”.

      (3)
After subsection (2) insert—

“(2A)
In subsection (2)(a), (b) and (ba), the references to proceedings

preliminary to trials include hearings at which the accused is

arraigned.