Armed Forces Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Schedule 1 — Court Martial sentencing powers where election for trial by that court instead of CO
36

      (8)
Where sub-paragraph (4) or (7) applies and the case also falls
within section 13(1) of the 1968 Act, section 13 of that Act shall not
apply.
      (9)
In section 16A of the 1968 Act (appeals against sentence), the
reference in subsection (2)(b) to the offence is to be read as a
5
reference to the joined offences.
Part 3
Interpretation
“Commanding officer”
16    (1)
References in this Schedule to a person’s commanding officer are
10
to the person’s commanding officer at the time the person elected
Court Martial trial.
      (2)
In determining for the purposes of paragraph 6(2), 7(2) or 9(3) or
(4) the punishments that a person’s commanding officer could
have awarded in respect of a charge or charges, no account is to be
15
taken of—
(a)
any change in the commanding officer’s rank after the
person elected Court Martial trial or (as the case may be)
after the charge or charges referred as mentioned in
paragraph 4(c) were so referred;
20
(b)
in the case of paragraph 6(2) or 9(3), any possibility that, if
the person had declined Court Martial trial, the
commanding officer might subsequently have been
granted extended powers for the purposes of any
provision of Chapter 1 of Part 6; or
25
(c)
in the case of paragraph 7(2) or 9(4), any possibility that, if
the charge or charges referred as mentioned in paragraph
4(c) had not been so referred, the commanding officer
might have been granted extended powers for the
purposes of any provision of Chapter 1 of Part 6 after the
30
time when the referral in fact took place.
Substituted charges
17
References in this Schedule to a charge substituted under section
125(2)(b) for another charge (“the original charge”) include—
(a)
a charge substituted for a charge that was itself substituted
35
for the original charge,
(b)
a charge substituted for a charge within paragraph (a),

and so on.”

Armed Forces Bill
Schedule 2 — Judge advocates sitting in civilian courts
Part 1 — Amendments conferring jurisdiction on judge advocates
37

Schedule 2
Section 26

Judge advocates sitting in civilian courts
Part 1
Amendments conferring jurisdiction on judge advocates
Senior Courts Act 1981 (c. 54)
5
1     (1)
Section 8 of the Senior Courts Act 1981 (persons who may exercise the
jurisdiction of the Crown Court) is amended as follows.
      (2)
In subsection (1)(b), for “, Recorder or District Judge (Magistrates’ Courts)”
substitute “, Recorder, qualifying judge advocate or District Judge
(Magistrates’ Courts)”.
10
      (3)
In subsection (1)(c), for “or Recorder” substitute “, Recorder or qualifying
judge advocate”.
      (4)
After subsection (1) insert—
“(1A)
The jurisdiction of the Crown Court exercisable by a qualifying judge
advocate by virtue of subsection (1) is the jurisdiction of the Court in
15
relation to any criminal cause or matter other than an appeal from a
youth court.”
      (5)
In subsection (3), for “, Circuit judge, Recorder or District Judge
(Magistrates’ Courts)” substitute “, Circuit judge, Recorder, qualifying judge
advocate or District Judge (Magistrates’ Courts)”.
20
      (6)
After subsection (3) insert—
“(4)
Subsection (1A) does not affect the jurisdiction of the Crown Court
exercisable by a person who holds an office mentioned in subsection
(1)(a) or (b) where that person is also a qualifying judge advocate.”
2
In section 73(2) and (3) of that Act (general provisions relating to Crown
25
Court proceedings), for “or Recorder” (wherever it occurs) substitute “,
Recorder or qualifying judge advocate”.
3
In section 74 of that Act (Crown Court proceedings on appeals)—
(a)
in subsection (1), after “Recorder” insert “or a qualifying judge
advocate”; and
30
(b)
in subsection (3), for “or Recorder,” substitute “, Recorder or
qualifying judge advocate,”.
4
In section 75(1) of that Act (allocation of cases and distribution of cases in
Crown Court), for “, Circuit judge, Recorder or District Judge (Magistrates’
Courts)” substitute “, Circuit judge, Recorder, qualifying judge advocate or
35
District Judge (Magistrates’ Courts)”.
5
In section 151(1) of that Act (interpretation), at the appropriate place insert—
““qualifying judge advocate” means—
(a)
the Judge Advocate General; or
(b)
a person appointed under section 30(1)(a) or (b) of the
40
Courts-Martial (Appeals) Act 1951 (assistants to the
Judge Advocate General);”.

Armed Forces Bill
Schedule 2 — Judge advocates sitting in civilian courts
Part 2 — Related amendments
38

Courts Act 2003 (c. 39)
6
In section 66 of the Courts Act 2003 (judges having powers of District Judges
(Magistrates’ Courts))—
(a)
after subsection (2) insert—
“(2A)
A qualifying judge advocate has the powers of a justice of the
5
peace who is a District Judge (Magistrates’ Courts) in relation
to criminal causes and matters.”; and
(b)
after subsection (4) insert—
“(5)
In this section “qualifying judge advocate” means—
(a)
the Judge Advocate General; or
10
(b)
a person appointed under section 30(1)(a) or (b) of the
Courts-Martial (Appeals) Act 1951 (assistants to the
Judge Advocate General).
(6)
Subsection (2A) is without prejudice to the powers conferred
by this section on a person within subsection (2) where that
15
person is also a qualifying judge advocate.”
Part 2
Related amendments
Criminal Justice Act 1967 (c. 80)
7
In section 9(5) of the Criminal Justice Act 1967 (application for court
20
attendance of person who has provided a written statement), after
paragraph (d) insert—
“(e)
subject to subsection (5A), a qualifying judge advocate
(within the meaning of the Senior Courts Act 1981).
(5A)
Subsection (5)(e) applies only where the application in question is to
25
the Crown Court.”;

but this paragraph is subject to paragraph 8.
8     (1)
This paragraph applies if the amendment made to section 9(5) of the
Criminal Justice Act 1967 by paragraph 1 of Schedule 4 to the Courts Act
2003 has not come into force before the commencement of paragraph 1 of
30
this Schedule.
      (2)
Until the coming into force of that amendment—
(a)
paragraph 7 above does not apply; and
(b)
section 9(5) of the Criminal Justice Act 1967 is amended as follows.
      (3)
The words from “by a puisne judge” to the end become paragraph (a).
35
      (4)
After paragraph (a) insert “; or
(b)
subject to subsection (5A), by a qualifying judge advocate
(within the meaning of the Senior Courts Act 1981) sitting
alone.
(5A)
Subsection (5)(b) applies only where the application in question is to
40
the Crown Court.”

Armed Forces Bill
Schedule 3 — Minor amendments of service legislation
39

Juries Act 1974 (c. 23)
9
In section 9B(3) of the Juries Act 1974 (judges who may determine whether
juror to be discharged on account of disability)—
(a)
omit the “or” at the end of paragraph (c); and
(b)
after paragraph (d) insert “, or
5
“(e)
subject to subsection (4), a qualifying judge advocate
(within the meaning of the Senior Courts Act 1981).
(4)
Subsection (3)(e) applies only where the case relates to a
summons to attend for jury service in the Crown Court.”;

but this is subject to paragraph 10.
10
10    (1)
This paragraph applies if the amendment made to section 9B(3) of the Juries
Act 1974 by paragraph 3 of Schedule 4 to the Courts Act 2003 has not come
into force before the commencement of paragraph 1 of this Schedule.
      (2)
Until the coming into force of that amendment—
(a)
paragraph 9 above does not apply; and
15
(b)
section 9B(3) of the Juries Act 1974 is amended as follows.
      (3)
The words from “any judge” to the end become paragraph (a).
      (4)
After paragraph (a) insert “, or
(b)
subject to subsection (4), any qualifying judge advocate
(within the meaning of the Senior Courts Act 1981).
20
(4)
Subsection (3)(b) applies only where the case relates to a summons to
attend for jury service in the Crown Court.”
Police and Criminal Evidence Act 1984 (c. 60)
11    (1)
Schedule 1 to the Police and Criminal Evidence Act 1984 (access to excluded
or special procedure material) is amended as follows.
25
      (2)
In paragraph 17 (as amended by section 114(1) and (9) of the Serious
Organised Crime and Police Act 2005), after “a Recorder” insert “, a
qualifying judge advocate (within the meaning of the Senior Courts Act
1981)”.
Schedule 3
30
Section 28

Minor amendments of service legislation
Definition of “service policeman” in Armed Forces Act 1991
1
In section 22A of the Armed Forces Act 1991 (removal and accommodation
of children by service police in emergency), in subsection (8) for the
definition of “service policeman” substitute—
35
““service policeman” has the meaning given by section 375(1) of
the Armed Forces Act 2006.”

Armed Forces Bill
Schedule 3 — Minor amendments of service legislation
40

Powers of arrest of an officer acting on behalf of provost officer
2
In section 67(2) of AFA 2006 (persons who may arrest an officer), for
paragraph (c) substitute—
“(c)
by a person who is lawfully exercising authority on behalf of
a provost officer, and who—
5
(i)
is an officer; or
(ii)
is acting on the order of an officer.”
Entry for purposes of arrest by service policeman
3
In section 90(6) of AFA 2006 (powers of arrest to which section applies), for
“or 111,” substitute “, 111 or 303,”.
10
Definition of “service living accommodation”
4     (1)
Section 96 of AFA 2006 (definition of “service living accommodation” etc for
purposes of Part 3) is amended as follows.
      (2)
In subsection (1), in each of paragraphs (a), (b) and (c) for “subject to service
law” substitute “within subsection (1A)”.
15
      (3)
After subsection (1) insert—
“(1A)
The following are persons within this subsection—
(a)
a person subject to service law;
(b)
a civilian subject to service discipline.”
Consultation of DSP before decision by service police on referral of case
20
5     (1)
In section 116 of AFA 2006 (referral of case following investigation by service
or civilian police), for subsection (4) substitute—
“(4)
Subsection (4A) applies if—
(a)
the allegation or circumstances would indicate to a
reasonable person that a Schedule 2 offence has or might
25
have been committed, or
(b)
any circumstances investigated are circumstances of a
description prescribed by regulations under section 128 for
the purposes of section 114,

and a service policeman proposes not to refer the case to the Director
30
under subsection (2).
(4A)
If this subsection applies, the service policeman must consult the
Director as soon as is reasonably practicable (and before any referral
of the case under subsection (3)).”
      (2)
In section 117(3)(b) (referral of multiple offences), for “116(3) or (4)”
35
substitute “116(3) to (4A)”.
Powers of DSP in respect of charge allocated for Court Martial trial
6     (1)
Section 125 of AFA 2006 (powers of Director of Service Prosecutions in
respect of charge allocated for Court Martial trial) is amended as follows.
      (2)
In subsection (3)—
40

Armed Forces Bill
Schedule 3 — Minor amendments of service legislation
41

(a)
insert “or” after paragraph (a); and
(b)
omit paragraph (c) and the “or” preceding it.
      (3)
Omit subsection (4).
Right to elect Court Martial trial
7
In section 129 of AFA 2006 (right to elect Court Martial trial), for subsection
5
(4) substitute—
“(4)
Subsection (5) applies if an opportunity to elect Court Martial trial of
a charge (“the original charge”) has been given under subsection (1)
and subsequently—
(a)
the charge is amended;
10
(b)
another charge is substituted for it; or
(c)
an additional charge is brought.
(5)
Subsection (1) applies in relation to the amended, substituted or
additional charge; and if the amendment, substitution or addition
takes place after the start of the summary hearing, that subsection
15
has effect in relation to the charge as if the reference to hearing a
charge summarily were to proceeding with the hearing.
(6)
In subsection (4)—
(a)
“amended” means amended under section 123(2)(a) or, in the
case of a charge referred to the Director of Service
20
Prosecutions otherwise than on election for Court Martial
trial, amended under section 125(2)(a) and referred to the
commanding officer under section 125(2)(e);
(b)
“substituted” means substituted under section 123(2)(b) or,
where the original charge was referred to the Director of
25
Service Prosecutions otherwise than on election for Court
Martial trial, substituted under section 125(2)(b) and referred
to the commanding officer under section 125(2)(e);
(c)
“brought”, in relation to an additional charge, means brought
under section 123(2)(c) or, where the original charge was
30
referred to the Director of Service Prosecutions otherwise
than on election for Court Martial trial, brought under section
125(2)(c) and referred to the commanding officer under
section 125(2)(e).
(7)
Subsection (8) applies where—
35
(a)
an opportunity to elect Court Martial trial of a charge has
been given under this section;
(b)
the accused has not elected Court Martial trial; and
(c)
at a time after the giving of the opportunity to elect, the
commanding officer obtains extended powers for the
40
purposes of any provision of section 133, 134, 135 or 194.
(8)
The provisions of this section requiring the giving of an opportunity
to elect Court Martial trial of the charge shall apply again.”
8
In section 130(3) of AFA 2006 (consequences of election for Court Martial
trial), for “if the charge is amended after referral.” substitute “—
45
(a)
where the charge is amended after referral;

Armed Forces Bill
Schedule 3 — Minor amendments of service legislation
42

(b)
to any charge substituted for or added to the charge after
referral; or
(c)
where extended powers for the purposes of any provision of
section 133, 134, 135 or 194 are obtained after referral.”
9
After section 130 of AFA 2006 insert—
5
“130A
Restrictions on DSP’s powers to substitute or add charges after
election
(1)
This section applies where—
(a)
a charge is for the time being regarded for the purposes of
Part 5 as allocated for Court Martial trial; and
10
(b)
the charge is in respect of an offence which would be a
relevant offence for the purposes of Schedule 3A (sentencing
powers of Court Martial where election for trial by that court)
if the accused were convicted of it.
(2)
The Director of Service Prosecutions (“the Director”) may not
15
without the written consent of the accused substitute under section
125(2)(b)—
(a)
a charge in respect of an offence which is not one that may be
dealt with at a summary hearing (see section 53); or
(b)
a charge in respect of an offence within section 54(2) (offences
20
that may be dealt with summarily only with permission or by
senior officer), except where the relevant charge was in
respect of such an offence.
(3)
In subsection (2)(b) “relevant charge” means—
(a)
in relation to a case A offence or a case B offence (within the
25
meaning of Schedule 3A), the charge in respect of which the
accused elected Court Martial trial; and
(b)
in relation to a case C offence or a case D offence (within the
meaning of Schedule 3A), the charge referred as mentioned
in paragraph 4(c) of that Schedule.
30
(4)
The Director may not without the written consent of the accused
bring under section 125(2)(c) a charge in addition to the charge.
(5)
In construing Part 1 of Schedule 3A (relevant offences) for the
purposes of this section, paragraphs 3(b) and 5(c) of that Schedule
are to be disregarded.”
35
Summary hearing
10
In each of sections 133(3), 134(2) and 135(5) of AFA 2006 (obtaining extended
powers of punishment), for “before the summary hearing of the charge or
charges” substitute “within the relevant time (defined by section 135A)”.
11
After section 135 of AFA 2006 insert—
40
“135A
Extended powers: time for obtaining
(1)
In each of sections 133(3), 134(2) and 135(5), “within the relevant
time” means before the start of the summary hearing; but this is
subject to subsections (2) and (3).
(2)
Subsection (3) applies where after the start of a summary hearing—
45