Select Committee on Armed Forces Written Evidence


Further Memorandum from the Ministry of Defence

THE POSITION OF COMMANDING OFFICERS UNDER THE SERVICE DISCIPLINE ACTS AND UNDER THE BILL

1.  During the visits of the Select Committee to Cyprus, Oman and Iraq the Ministry of Defence were requested to provide a note of the main changes which would be made by the Bill in the statutory powers and jurisdiction of Commanding Officers.

2.  OFFENCES WHICH MAY BE DEALT WITH BY COS

  2.1  The position under the Service Discipline Acts (SDAs) is as follows:

    —  Army and RAF: the charges which may currently be dealt with summarily by a CO are specified in regulations under section 83(2)(d) of the Army Act 1955 and of the Air Force Act 1955.  The regulations for the Army are the Custody and Summary Dealings (Army) Regulations 2000.  They are made by the Defence Council and are not subject to Parliamentary procedure. There are fourteen criminal offences and a number of disciplinary offences. The disciplinary offences are listed in Part 1, and the criminal offences are listed in Part 2, of Appendix A to this memorandum.

    —  Royal Navy: the charges that may currently be dealt with summarily by a CO are provided for by section 52B(7) and (8) of the Naval Discipline Act 1957.  In theory the jurisdiction is very wide, covering all disciplinary offences except those which, before the Human Rights Act 1998, were punishable with death and all criminal offences other than those carrying mandatory life imprisonment.

  2.2  The position under the Bill is as follows:

    —  COs of all three services will have the same jurisdiction.

    —  The disciplinary offences which a CO will be able to deal with summarily are listed in clause 53(1)(a) to (f) and (h) to (k) of the Bill. The offences referred to are set out in Appendix B to this memorandum. Appendix B is not set out in the order the offences appear in the Bill. Instead the list is set out to allow a simple comparison of the summary disciplinary offences under the Bill with the list of current Army and RAF summary offences in Part1 of Appendix A to this memorandum. By comparing Part 1 of Appendix A with Appendix B it will be seen that the proposed summary jurisdiction under the Bill over disciplinary offences is essentially the same as the current Army and RAF jurisdiction. A difference is that four existing, summary disciplinary offences will not be offences (or not be separate offences) under the Bill. The only other difference is that the four listed at the end of Appendix A are not summary under the SDAs but will be capable of summary dealing under the Bill.

    —  The criminal offences are those which are currently within the jurisdiction of Army and RAF COs, plus a number of additional offences. Those currently within the jurisdiction of Army and RAF COs are listed in the Bill (Part 1 of Schedule 1). The extra offences are listed in Part 2 of Schedule 1 to the Bill. The extra offences include assault causing actual bodily harm and fraud. The Royal Navy will lose much of its current, theoretically wide, summary jurisdiction. But the Navy wished to preserve their jurisdiction over these extra offences, and they will also be useful for the Army and RAF. The Bill gives COs of all Services summary jurisdiction over these extra offences.

    —  Unless he is of 2Ø rank, a CO of any Service will require the permission of higher authority to deal with any of the extra offences (clause 54(1)).

  2.3  Both under the SDAs and the Bill a CO will not in practice deal with a case which is technically within his jurisdiction if the case is too serious for his powers of punishment or too complex. In considering whether a case is too serious or too complex a CO is expected (in accordance with QRs or the relevant Service manual) to take legal advice.

3.  WHICH SERVICE PERSONNEL MAY BE DEALT WITH SUMMARILY BY A CO?

  3.1  The position under the SDAs is as follows:

    —  Army and RAF: a CO may not deal summarily with an officer or warrant officer (section 76(6) of the Army Act 1955 and the Air Force Act 1955). An officer under the rank of colonel (group captain in the RAF) or a warrant officer can be dealt with summarily, but only by appropriate superior authority (section 76A(4) of the Army Act 1955 and the Air Force Act 1955).

    —  Royal Navy: a CO may try an accused summarily if three requirements are met: the CO must be of at least the rank of commander: the CO's rank must be at least two higher than that of the accused; and the accused must be below the rank of captain (section 52B(5) and (6A) of the Naval Discipline Act 1957).

    —  Officers who cannot be dealt with summarily by appropriate superior authority or a CO may only be tried by court martial.

  3.2  The position under the Bill:

    —  A CO will be able to deal summarily with service personnel of any rank or rate below that of captain (colonel in the Army or group captain in the RAF).

    —  It is intended that the power under clause 352 of the Bill to determine by Defence Council Regulations who is the CO for different purposes of the Bill will be used to provide so that a CO for the purposes of dealing summarily with service personnel will be a person whose rank is at least two ranks higher than that of the accused.

    —  Officers above the rank of captain/colonel/group captain will, as now, only be triable by the Court Martial.

4.  COS SUMMARY OF POWERS OF PUNISHMENT OF SERVICE PERSONNEL

  4.1  As mentioned at 2.3 above, the cases within his jurisdiction which a CO can appropriately deal with are limited by his powers of punishment.

  4.2  The provisions under the SDAs are complex, but broadly the position is as follows:

    —  Army and RAF: section 76C of the Army Act 1955 and the Air Force Act 1955 specify a CO's powers of punishment on summary dealing. These powers are restricted by Defence Council regulations under section 83(2)(g) of those Acts.

    —  Royal Navy: certain punishments (imprisonment, dismissal with disgrace and detention for more than three months) are excluded by section 52D(8) of the Naval Discipline Act 1957. Further restrictions are imposed by Defence Council regulations under section 52F(2) of the 1957 Act.

    —  The main differences in the current punishment powers of COs are:

  Detention: Army and RAF COs may impose up to 28 days' detention, and up to 60 days with the consent of higher authority. Royal Navy COs may impose up to 90 days' detention, but any sentence of detention requires the consent of higher authority.

  Dismissal: Army and RAF COs cannot impose a punishment of dismissal from the service; a Royal Navy CO can so.

  Reduction in rank/rate: There are differences between all three Services, and these are complicated by special provisions as to acting rank. A Royal Navy CO's power of reduction in rate is the widest; a chief petty officer may be reduced by up to three rates.

  4.3  Under the Bill, the powers of COs of all three Services are the same. In particular:

  Detention: The maximum penalty will be 28 days, but will be 90 days if the CO has been granted extended powers by higher authority (clause 132).

  Dismissal: There will be no power of summary dismissal.

  Reduction in rank/rate: This will be limited to a reduction by one rank or rate from the lowest NCO rank—clause 134.

5.  THE ROLE OF THE CO PRIOR TO CHARGE

  5.1  The SDAs do not deal with the general role and powers of a CO before a person is charged with a service offence. COs powers under the SDAs relate primarily to the period after a matter has been reported to the CO "in the form of a charge" (section 76(1) of the Army Act 1955 and Air Force Act 1955, and section 52B of the Naval Discipline Act 1957).

  5.2  Clauses 113 to 121 of the Bill deal with the role of the CO up to and including the bringing of a charge. Important points are as follows:

    —  The CO will have a general duty to ensure that possible service offences are appropriately investigated. It will in all cases be sufficient for the CO to make the Service Police aware of the matter (clause 115).

    —  In respect of allegations of specified serious offences and in other circumstances prescribed by regulations, the CO will have to ensure that the Service Police are aware of the matter (clauses 113 and 114).

    —  The CO will only have power to decide a charge which can be heard summarily (clause 119(2)). In all other cases the charge will be decided by the Director of Service Prosecutions.

    —  In all cases the CO will put the charge to the accused.

6.  THE ROLE OF THE CO AFTER CHARGE

  The main change in relation to the period after charge relates to a CO's power to dismiss a charge without a hearing:

    —  Under the Army Act 1955 and Air Force 1955 (section 76(5)) the CO may dismiss any charge without a hearing. The effect of this, is that the accused cannot be tried for the offence in question within the military system (section 134(1)(b) of the Army Act 1955 and Air Force Act 1955).

    —  Under the Naval Discipline Act 1957 (section 52B(5)) the CO may also dismiss any charge without a hearing. However, the 1957 Act does not contain provision equivalent to section 134 of the Army and Air Force Acts. The effect of dismissal in the Royal Navy is therefore less certain than in the Army and RAF.

    —  Clause 122 of the Bill deals with a CO's powers after charge. The Bill does not include a power for a CO to dismiss a charge without a hearing. The clause does retain a power for the CO to discontinue proceedings. This reflects a separate, existing power under the SDAs. It can be used, for example, where there is insufficient evidence to continue proceedings, but it is expected that relevant evidence will be become available. Accordingly, the power to discontinue proceedings does not completely preclude further proceedings under the service system.


 
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