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.
| 
