Armed Forces Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
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(b)
in relation to the taking of a specimen under section 93G or a
requirement to give permission for a laboratory test of a
specimen taken under that section, the ground that the taking of
the specimen, the requirement, or any warning required by
section 93G(5), would be so prejudicial.
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93I
Definitions for purposes of Chapter 3A
(1)
In this Chapter—
“approved”, in relation to a device, means approved by the
Secretary of State;
“drug” includes any intoxicant other than alcohol;
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“medical establishment” means any facility at which medical or
surgical treatment for in- or out-patients is provided;
“preliminary test” means—
(a)
a preliminary breath test within the meaning of section
93B;
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(b)
a preliminary impairment test within the meaning of
section 93C; or
(c)
a preliminary drug test within the meaning of section
93D;
“safety-critical duty” means a duty which the commanding officer
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of the person mentioned in section 93A(1) or 93E(1) reasonably
believes is such that performing the duty with ability impaired
by alcohol or drugs would result in a risk of—
(a)
death;
(b)
serious injury to any person;
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(c)
serious damage to property; or
(d)
serious environmental harm;
“service police establishment” means any building or part of a
building, any structure, or any room (whether on land or on a
ship) which is used by a service policeman for the performance
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of his duties.
(2)
In this Chapter any reference to a service policeman includes a Royal
Navy coxswain.”
(2)
In consequence of the provision made by subsection (1), sections 306 and 307
of AFA 2006 (testing for alcohol and drugs after serious incident) are repealed.
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Punishments and other court orders
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Amendments relating to new rank of lance corporal in RAF Regiment
(1)
In section 132 of AFA 2006 (punishments available to commanding officer)—
(a)
in row 1 of the Table, in paragraph (c) of the entry in the third column,
after “air forces” insert “(but see subsection (1A))”;
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(b)
after subsection (1) insert—
“(1A)
In this section and section 133 references to a corporal in any of
Her Majesty’s air forces do not include a corporal in the Royal
Air Force Regiment.”
(2)
In section 135 of AFA 2006 (reduction in rank: limits on powers), for subsection
45

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(3) substitute—
“(3)
Where the person being punished is a corporal in any of Her Majesty’s
air forces, the reduction in rank authorised by subsection (2)(a) or (b)
(as the case may be) is reduction to the highest rank the person has held
in that force as an airman; but this is subject to subsection (3A).
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(3A)
In relation to the Royal Air Force Regiment, the reference in subsection
(3) to a corporal is to be read as a reference to a lance corporal.”
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Reduction in rank or rate
(1)
In section 138 of AFA 2006 (prohibited combinations of punishments), for
subsections (2) and (3) substitute—
10
“(2)
If he awards detention, the only additional punishments he may award
are—
(a)
reduction in rank or disrating (subject to subsection (8));
(b)
a service compensation order.”
(2)
Omit section 293 of AFA 2006 (automatic reduction of rank or rate of warrant
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officer or non-commissioned officer given custodial sentence or sentence of
service detention).
(3)
The repeal of section 293 of AFA 2006 by subsection (2) does not affect any
reduction in rank or disrating that occurred by virtue of that section before the
commencement of that repeal.
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14
Sentencing powers of Court Martial where election for trial by that court
instead of CO
(1)
For section 165 of AFA 2006 substitute—
“165
Sentencing powers of Court Martial where election for trial by that
court instead of CO
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Schedule 3A (sentencing powers of Court Martial where election for
trial by that court instead of CO) has effect.”
(2)
After Schedule 3 to AFA 2006 insert the Schedule set out in Schedule 1.
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Increase in maximum term of detention for certain offences
(1)
In section 305(5) of AFA 2006 (limit on term of imprisonment or detention for
30
an offence under that section), omit the words “or service detention”.
(2)
In section 95 of the Reserve Forces Act 1996 (offences against orders and
regulations under section 4)—
(a)
in subsection (2)(a)(ii) omit the words “or service detention”;
(b)
after subsection (2A) insert—
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“(3)
In relation to an offence committed before the coming into force
of section 281(5) of the Criminal Justice Act 2003, subsection
(2)(a)(ii) has effect as if the reference to 51 weeks were to 6
months.”

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Enforcement of financial penalties
(1)
After section 269 of AFA 2006 insert—
“269A
Fines: fixing of term of imprisonment for default
(1)
Where the Court Martial imposes a fine on a person aged 18 or over, the
court must make an order fixing a term of imprisonment which the
5
person is to undergo if—
(a)
any sum which the person is liable to pay is not duly paid or
recovered; and
(b)
an enforcement order is made.
(2)
The Table in section 139(4) of the Sentencing Act (maximum periods of
10
imprisonment for default), as for the time being in force, applies for the
purpose of determining the maximum periods of imprisonment that
may be fixed under this section for fines of the amounts set out in that
Table.
(3)
Where the person mentioned in subsection (1) is sentenced by the court
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to, or is serving or otherwise liable to serve, a term of—
(a)
imprisonment,
(b)
detention in a young offender institution, or
(c)
detention under section 108 of the Sentencing Act (detention of
persons aged 18 to 21 for default or contempt),
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the court may order that any term of imprisonment fixed under
subsection (1) shall not begin to run until after the end of that other
term.
(4)
For the purposes of references in subsection (3) to a term of
imprisonment or detention which a person has been sentenced to or is
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serving or liable to serve, consecutive terms and terms which are
wholly or partly concurrent are to be treated as a single term.
(5)
References in subsection (3) to a term which a person is serving or liable
to serve are to a term imposed—
(a)
by a relevant service court; or
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(b)
by a civilian court in any part of the United Kingdom.
(6)
In this section—
“enforcement order” means an order under regulations made
under section 322 (orders for enforcement by prescribed courts
of fines etc);
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“relevant service court” means the Court Martial, the Service
Civilian Court, the Court Martial Appeal Court or the Supreme
Court on an appeal brought from the Court Martial Appeal
Court.
269B
Service compensation orders: power to set maximum term of
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imprisonment for default
(1)
This section applies where—
(a)
the Court Martial makes a service compensation order and the
person by whom the compensation is payable is aged 18 or
over; and
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(b)
the court thinks that the usual default term is insufficient.

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(2)
In subsection (1) “the usual default term” means the period for which
the person would be liable to be committed to prison for default if—
(a)
an enforcement order were made; and
(b)
by virtue of that order, the amount payable under the service
compensation order were treated as if it had been a fine
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imposed on a conviction by a magistrates’ court in England and
Wales.
(3)
Where this section applies, the court may specify a longer period as the
maximum term to which the person is liable to be committed to prison
for default if an enforcement order is made.
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(4)
The Table in section 139(4) of the Sentencing Act (maximum periods of
imprisonment for default), as for the time being in force, applies for the
purpose of determining the maximum periods of imprisonment that
may be specified under this section for service compensation orders of
the amounts set out in that Table.
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(5)
In this section “enforcement order” has the same meaning as in section
269A.
269C
Orders under section 269A or 269B against service parents or service
guardians: appeals
(1)
This section applies where—
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(a)
the Court Martial makes an order under section 268 in respect
of a fine or service compensation order (fine or compensation to
be paid by service parent or service guardian); and
(b)
the court also makes an order under section 269A or 269B (“a
default term order”) in respect of the parent or guardian (“P”).
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(2)
For the purposes of the Court Martial Appeals Act 1968—
(a)
the default term order is to be treated as a sentence passed on P
for the offence in respect of which the fine or service
compensation order was imposed; and
(b)
P is to be treated, for the purpose of enabling P to appeal against
30
the default term order, as if P had been convicted of the offence
by the Court Martial.
(3)
For the purposes of any appeal against the default term order,
references in section 16A of the Court Martial Appeals Act 1968 to
passing a sentence include making an order.
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(4)
On an appeal against the default term order, the Court Martial Appeal
Court may (as an alternative to exercising its powers under section
16A(2) of that Act) quash the order; but this is subject to subsection (5).
(5)
If the default term order was made under section 269A, the power
under subsection (4) may only be exercised if the court also quashes the
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order under section 268.”
(2)
In section 322(3) of AFA 2006 (financial penalty enforcement orders), after
paragraph (a) insert—
“(aa)
about the effect, where a sum is certified in such an order, of an
order made by the Court Martial under—
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(i)
section 269A (fines: fixing of term of imprisonment for
default); or

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(ii)
section 269B (service compensation order: maximum
term of imprisonment for default);”.
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Service sexual offences prevention orders
(1)
After section 232 of AFA 2006 insert—
“Service sexual offences prevention orders etc
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232A
Service sexual offences prevention orders
(1)
The Court Martial or the Service Civilian Court may make an order
under this section where—
(a)
it deals with a person within subsection (2) (“the defendant”) in
respect of—
10
(i)
a qualifying section 42 offence of which the defendant
has been convicted; or
(ii)
a relevant finding in relation to a qualifying section 42
offence; and
(b)
it is satisfied that it is necessary to make an order under this
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section for the purpose of protecting the service community
outside the United Kingdom from serious sexual harm from the
defendant.
(2)
The following are persons within this subsection—
(a)
a member of the regular forces;
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(b)
a member of the reserve forces (whether or not for the time
being subject to service law);
(c)
a civilian subject to service discipline;
(d)
a person who the court is satisfied is intending to become, or
likely to become, a civilian subject to service discipline.
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(3)
An order under this section—
(a)
prohibits the defendant from doing anything described in the
order; and
(b)
has effect for a fixed period, of at least five years, specified in the
order or until further order.
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(4)
The only prohibitions that may be included in the order are those
necessary for the purpose of protecting the service community outside
the United Kingdom from serious sexual harm from the defendant.
(5)
Where—
(a)
a court makes an order under this section, and
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(b)
the defendant is already subject to such an order (whether made
by that court or another),

the earlier order ceases to have effect.
(6)
In this section and sections 232B to 232E—
(a)
“protecting the service community outside the United Kingdom
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from serious sexual harm” from a person means protecting the
service community outside the United Kingdom, or particular
members of that community, from serious physical or
psychological harm, caused by the person committing one or

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more offences under section 42 as respects which the
corresponding offence under the law of England and Wales is
an offence listed in Schedule 3 to SOA 2003;
(b)
“qualifying section 42 offence” means an offence under section
42 as respects which the corresponding offence under the law of
5
England and Wales is an offence listed in Schedule 3 or 5 to SOA
2003;
(c)
“relevant finding”, in relation to an offence, means—
(i)
a finding that a person is not guilty of the offence by
reason of insanity; or
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(ii)
a finding that a person is unfit to stand trial and has
done the act charged;
(d)
“service community” means persons subject to service law and
civilians subject to service discipline;
(e)
“SOA 2003” means the Sexual Offences Act 2003.
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(7)
In construing subsection (6)(a) or (b), any condition subject to which an
offence is listed in Schedule 3 to SOA 2003 that relates—
(a)
to the way in which a person is dealt with in respect of the
offence or a relevant finding, or
(b)
to the age of any person,
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is to be disregarded.
232B
Service SOPOs: appeals
(1)
This section applies where the Court Martial makes an order under
section 232A in respect of a relevant finding in relation to a qualifying
section 42 offence.
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(2)
For the purposes of the Court Martial Appeals Act 1968—
(a)
the order is to be treated as a sentence passed on the defendant
in respect of the offence; and
(b)
the defendant is to be treated for the purpose of enabling the
defendant to appeal against the order as if the defendant had
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been convicted of the offence by the court.
(3)
For the purposes of any appeal against the order, references in section
16A of the Court Martial Appeals Act 1968 to passing a sentence
include making an order.
232C
Service SOPOs etc: variation and revocation
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(1)
The Court Martial may vary or revoke an order under section 232A on
an application made by—
(a)
a Provost Marshal; or
(b)
the person subject to the order.
(2)
If subsection (3) applies, the Court Martial may vary or revoke an order
40
under section 104 of SOA 2003 (sexual offences prevention order) on an
application made by—
(a)
a Provost Marshal; or
(b)
the person subject to the order.
(3)
This subsection applies if the person subject to the order under section
45
104 of SOA 2003 (“the SOA order”) is also subject to an associated order
under section 232A and either—

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(a)
the person is subject to service law or a civilian subject to service
discipline; or
(b)
the application is made together with an application for the
variation or revocation of the associated order under section
232A.
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(4)
An order may be varied under this section so as to extend the period for
which it has effect, or so as to impose additional prohibitions, only if—
(a)
in the case of an order under section 232A, the court is satisfied
that the variation is necessary for the purpose of protecting the
service community outside the United Kingdom from serious
10
sexual harm from the person subject to the order (in which case
section 232A(4) applies accordingly);
(b)
in the case of an order under section 104 of SOA 2003, the
requirements of section 108(5) of that Act are met (protection of
public in United Kingdom from serious sexual harm).
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(5)
The Court Martial must not before the end of the relevant period revoke
an order under section 232A, or an order under section 104 of SOA
2003, without the consent of—
(a)
the person subject to the order; and
(b)
a Provost Marshal.
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(6)
In subsection (5) “the relevant period” means the period of five years
beginning with the day on which the order was made.
(7)
For the purposes of this section an order under section 104 of SOA 2003
and an order under section 232A are “associated” if they were made by
the Court Martial or the Service Civilian Court in dealing with the same
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offence or relevant finding.
(8)
This section is without prejudice to section 108 of SOA 2003
(application to civilian court for variation etc of a sexual offences
prevention order).
232D
Variation or revocation: appeals
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(1)
A person may appeal to the Court Martial Appeal Court against—
(a)
the variation under section 232C of an order to which the person
is subject; or
(b)
a decision by the Court Martial not to vary or revoke such an
order on an application under that section.
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(2)
On an appeal under subsection (1), the Court Martial Appeal Court
may make—
(a)
such orders as may be necessary to give effect to its
determination of the appeal; and
(b)
such incidental or consequential orders as appear to it to be just.
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232E
Extended prohibitions orders
(1)
On an application made by a Provost Marshal, the Court Martial must
make an order under this section in respect of a person within
subsection (2) if the relevant requirements are met.
(2)
The following are persons within this subsection—
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(a)
a member of the regular forces;