Supplementary written evidence from the
Ministry of Defence
ALCOHOL AND
DRUGS PROVISIONS
IN THE
ARMED FORCES
BILL
1. This memorandum is a supplemental memorandum
provided in response to questions raised during the taking of
oral evidence before the Select Committee on the Armed Forces
Bill. The questions relate to the new sections of the Armed Forces
Act 2006, provided for in clause 11 of the Bill (Testing for alcohol
and drugs on suspicion of an offence). The Committee asked:
- (a) whether the requirement in the proposed
new sections 93E(5)(c) and 93G(6)(b) for a specimen of blood or
urine to be of sufficient quantity to be divided into two parts
for the purpose of analysis is consistent with road traffic legislation;
and
- (b) whether the requirement to provide a
urine sample within one hour of it being required is consistent
with road traffic legislation.
2. The question about the requirement as to the
quantity of blood and urine samples:
2.1 Under road traffic legislation, the procedure
for taking samples is dealt with mainly in Part 1 of the Road
Traffic Act 1988. That Act does not deal with the required size
of a sample. That issue is dealt with in the Road Traffic Offenders
Act 1988 ("RTOA") by reference to the question whether
a sample is sufficient to be admitted in evidence. The aim is
to provide a safeguard for the accused. Under the RTOA, when a
person provides a specimen of blood or urine, he is entitled to
ask for a part of the specimen. Evidence of the proportion of
alcohol, or of any drug, found in the specimen is not admissible
in court unless:
- (a) the specimen in which the alcohol or
drug is found is one of two parts into which the specimen provided
by the person was divided when it was provided, and
- (b) the other part of the specimen was available
to the person if he wished to arrange his own analysis of it.
2.2 The overall effect of the road traffic provisions
is that the evidence will not be admitted unless the specimen
is large enough to be, and is in fact, divided, with one part
provided to the accused for analysis.[66]
2.3 The approach adopted in clause 11 of the
Bill is slightly different in that it includes in the provisions
as to the taking of samples the requirement for them to be capable
of division into two parts for analysis.[67]
It also includes the requirement that the person providing the
specimen must (if he or she requests it) be given a part of the
specimen for analysis. It was thought helpful to include these
requirements in the provisions governing the taking of the samples,
because of the importance of the person taking the samples being
aware of them. Provision governing the effect of the requirements
on the admissibility of a sample as evidence will be included
in court rules under the Armed Forces Act 2006.
2.4 The provisions in the Bill for offences with
respect to alcohol and drugs are related to safety-critical duties.
This broadly reflects the approach of the Railways and Transport
Safety Act 2003 with respect to the carrying out of aviation and
navigation functions. As regards the provisions for testing, the
Bill's provisions are consistent with those of the 2003 Act, as
that Act adopts (with necessary modifications) the provisions
for testing in road traffic legislation, including the provisions
of the RTOA summarised above.
3. The question about the timing requirement
for the giving of a urine sample:
3.1 As mentioned in the Ministry of Defence's
first memorandum on drugs and alcohol provisions, this requirement,
which is set out in the proposed new section 93E(6)(a), is exactly
the same as that contained in section 7(5) of the Road Traffic
Act 1988.
16 February 2011
66 Section 15(5) of the Road Traffic Offenders Act
1988. Back
67
New sections 93E(5)(c) and 93E(6)(b) of the Armed Forces Act 2006. Back
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