Legislative Scrutiny: Armed Forces Bill - Joint Committee on Human Rights

Legislative Scrutiny: Armed Forces Bill - Joint Committee on Human Rights Contents

2. Memorandum submitted by the Ministry of Defence, 12 January 2011

1. The Armed Forces Bill makes provision with respect to a range of matters relating to defence and the armed forces. It also renews, subject to amendments made by the Bill, the Armed Forces Act 2006.

Renewal of the Armed Forces Act 2006 (clause 1)

2. Since the Bill of Rights 1688 the legislation governing the Army (and more recently the Royal Navy and the RAF) has been subject to regular renewal by Act of Parliament. The Bill accordingly provides for the continuation in force of the Armed Forces Act 2006 ("the 2006 Act") until no later than the end of 2016. A further Act will then be required.

3. The 2006 Act governs all the armed forces of the United Kingdom. Its preparation was preceded by a comprehensive review of the law governing the armed forces. One of the purposes of this review was to identify any provisions which might give rise to doubts about ECHR compatibility. A statement of compatibility was made in both Houses in relation to the Act.

4. The 2006 Act reflected changes previously made to armed forces' legislation as a result of a series of judgments between 1996 and 2003 relating to the compliance with the Convention (in particular Article 6) of a number of aspects of the armed forces' system of justice. The main changes reflected in the 2006 Act are summarised in paragraphs 5 to 21. Considerable detail of these changes is given in this memorandum principally to provide a context for the consideration in paragraph 22 and following of the impact of more recent ECHR developments.

5. Courts-martial. The system of armed forces' courts, and in particular courts-martial, was closely scrutinised in the following cases:

Findlay v UK (1997)[59]

Morris v UK (2002)[60]

R v Spear and others (2003) (House of Lords)[61]

Cooper v UK and Grieves v UK (2003) (Grand Chamber)[62]

6. The main changes resulting from Findlay were:

a) the establishment of independent prosecuting authorities for the armed forces;

b) the appointment of a statutory court administration officer with responsibility for selecting the lay members of courts-martial, instead of selection by the chain of command;

c) the ending of confirmation by the chain of command of the court-martial's decisions on verdict and sentence.

7. In the case of Morris the European Court approved the changes made in response to Findlay, but identified two other aspects of the system which they considered to be non-compliant. These were:

a) that the safeguards against undue pressure being brought against in particular junior service members of courts-martial were insufficient to guarantee impartiality, and

b) that the role of the "reviewing authority" was non-compliant. The reviewing authority was a non-judicial authority with power to overturn a conviction by a court-martial or to change the sentence (but only to one which the reviewing authority considered no greater than the original sentence).

8. In the case of Spear and others the House of Lords considered a number of aspects of the court-martial in relation to the Convention, as well as the general principle of trial by military courts. Among the issues considered were those identified by the European Court in Morris. The House of Lords examined the issues in great detail. They held that the system was compliant on all the issues before it, including those in which the European Court in Morris had found against the system. On the issue mentioned at paragraph 7(a) above the House of Lords concluded that the European Court had not been aware of certain safeguards (such as the application of the offence of attempting to pervert the course of justice to any person seeking to influence improperly a member of a court-martial) and had as a result made certain false assumptions. On the issue mentioned at paragraph 7(b) above, they concluded that the detailed statutory provisions prevented the reviewing authority from having any real discretion as to whether a substituted sentence was more or less severe than the sentence imposed by the court. They concluded that accordingly the application of review did not render the system non-compliant.

9. In the cases of Cooper and Grieves the European Court again considered a number of grounds of challenge to the compliance of courts-martial. The cases were heard by the Grand Chamber of the European Court, because of the disagreement between the decision of the European Court in Morris and that of the House of Lords in Spear and others. The issues considered included both of those mentioned in paragraph 7(a) and (b) above. The Grand Chamber rejected all of the grounds of challenge in Cooper (which related to the RAF and by extension to the Army, which has essentially the same system), accepting the House of Lords' view on guarantees of independence and on the reviewing authority. In Grieves (which related to the Royal Navy) the Grand Chamber accepted one ground of challenge, that the (non-statutory) practice in the Royal Navy of appointing as judges in courts-martial (judge advocates) lawyers who were serving naval officers was contrary to Article 6.

10. The appointment as judge advocates of lawyers who are serving naval officers was accordingly ended.

11. However the Grand Chamber did express in Cooper and Grieves criticisms and doubts about the powers of the reviewing authority. Though intended to benefit an accused, the powers were criticised on the basis that their use involved a non-judicial interference with a judicial decision. It was considered by the Ministry of Defence that the European Court might in future adopt a stronger position against such powers. The 2006 Act accordingly repealed the provisions for review of courts-martial.

12. Commanding Officers' summary jurisdiction and powers of punishment: these required consideration of compatibility with Article 6. A hearing before a Commanding Officer is not itself compliant, but changes had been included in the Armed Forces Discipline Act 2000 to ensure that the summary system taken as a whole was compliant. The changes are reflected in the 2006 Act. As a result a system exists under the 2006 Act under which there is:

a) a right of appeal (by way of a full rehearing) on conviction or sentence to a compliant court (the Summary Appeal Court), and

b) a right of an accused to choose trial by the new standing Court Martial instead of a hearing by the Commanding Officer, but with the Court Martial applying only the powers of punishment of a Commanding Officer.

13. The Army's system was subsequently considered by the High Court in the case of Baines in 2005.[63] In that case the High Court rejected arguments that the system did not comply with Article 6. The High Court confirmed that the rights to elect and to appeal were the basis of the system being compliant.

14. Investigation of alleged offences and decisions on prosecution. Under the armed forces' legislation before the 2006 Act the Commanding Officer ("CO") was central to the decision whether to prosecute. If there was a service police investigation, the result was referred in all cases to the CO. The CO had an important role in deciding the charge. He also had power to dismiss any charge, even one which he could not try, and the effect of doing so was to prevent further proceedings within the military system. This was considered by the Ministry of Defence to be unsatisfactory on a number of grounds, including in relation to Articles 2 and 3.

15. The main changes made by the 2006 Act are summarised in paragraphs 16 to 21. Details are also given about these provisions to provide a context for the comments on developments since the 2006 Act described below, in particular the decision of the High Court in Ali Zaki Mousa v the Secretary of State, referred to in paragraphs 26 and 27 below.

16. The CO's power to dismiss a case so as to prevent further proceedings within the military system was repealed.

17. The 2006 Act establishes a general duty on COs as to the investigation of possible offences by those under their command. In particular, section 115 provides so that, if a CO becomes aware of an allegation or circumstances which would indicate to a reasonable person that any offence under the Act may have been committed by someone under his command, the CO must ensure that the matter is investigated appropriately or ensure that a service police force is aware of the matter. The reference (in section 115(4)) to a commanding officer ensuring that a service police force is aware of a matter reflects the fact that the service police may already be investigating on their own initiative or after another police force has referred a matter to them (as to which the Joint Committee is referred also to section 116(1) of the 2000 Act).

18. If a CO becomes aware of an allegation or circumstances which would indicate to a reasonable person that any of a list of offences may have been committed by someone in his command, he must ensure that a service police force is aware of the matter (section 113 of, and Schedule to the 2006 Act. The list of offences includes murder, manslaughter, grave breaches of the Geneva Convention, torture, offences under section 51 or 52 of the International Criminal Court Act 2001 and many other serious offences.

19. The same duty (to ensure that a service police force is aware) also falls on a CO if he becomes aware of any circumstances prescribed by regulations (section 114).The circumstances are prescribed in the Armed Forces (Part 5 of the Armed Forces Act 2006) Regulations 2009 (SI 2009/2055). These include a number of sensitive situations, for example, death or serious injury to persons who are not in the armed forces in a place occupied or controlled by the armed forces.

20. Where the service police have investigated any possible offence under the Act, they must refer it in certain circumstances to the independent, tri-service prosecuting authority (the Director of Service Prosecutions) established by the 2006 Act. Under section 116(2)(a) of the 2006 Act the duty to refer arises where a service policeman considers that there is sufficient evidence to charge an offence listed in Schedule 2 to the 2006 Act. Under section 116(2)(b) the same duty arises where a service policeman considers that there is sufficient evidence to charge any offence under the 2006 Act and is aware of circumstances prescribed under the regulations mentioned in paragraph 19 above.

21. If the service police consider there is sufficient evidence to charge an offence under the 2006 Act, but the duty to refer it to the Director of Service Prosecutions does not apply (The offence is not one within Schedule 2 to the 2006 Act or the service police are not aware of any prescribed circumstance), they must refer the case to the CO of the suspect. In those cases the CO may bring a charge which he can deal with summarily or refer the case back to the Director of Service Prosecutions for a final decision on what to do about the case (section 120 of the 2006 Act).

ECHR issues arising since the 2006 Act

22. Martin v UK (2006)[64]. During the final stages of the passage through Parliament of the 2006 Act, the European Court delivered its judgment in Martin. The court held in particular that only in "very exceptional circumstances" would the determination of criminal charges against civilians in military courts be compatible with Article 6.

23. The 2006 Act gives two courts (the Service Civilian Court and the Court Martial) criminal jurisdiction over certain categories of civilian outside the United Kingdom. The main groups of civilians subject to this jurisdiction are:

a) members of service families living with members of the armed forces in specified countries outside the UK (principally on the large bases in Germany and Cyprus):

b) civil servants who work in support of the armed forces and are in certain designated areas;

c) designated individuals or groups (principally contractors and other individuals working alongside members of the armed forces abroad).

24. The Ministry of Defence's view is that the European Court was not saying that the United Kingdom needs to put in place a UK civilian court jurisdiction such as the Crown Court, but a court jurisdiction which satisfies the requirements of a civilian court even if established under legislation dealing with the armed forces. The Ministry of Defence also considers that this meant that, if a trial of a civilian is to be heard before the Court Martial, all the lay members of the court must be civilians (the judge advocate must in any event be a civilian).The 2006 Act can be used to provide for such a civilian membership, as the requirement under that Act for military lay members of the Court Martial is subject to court rules.[65]

25. The Court Martial Rules[66] allow all the lay members of the Court Martial to be civilians in the case of the trial of a civilian. The Service Civilian Court is always composed solely of a (civilian) judge advocate. Trials of civilians before the Court Martial are exceptionally rare but, in such a case the court administration officer will select the lay members from a group of fifty or so MoD civil servants selected randomly. The court administration officer is appointed directly by the Defence Council (so as to be independent of the chain of command) and has responsibility for the selection of the lay members of service courts.

26. R (on the application of Ali Zaki Mousa) v Secretary of State for Defence.[67] The Secretary of State for Defence is currently facing a series of legal challenges relating to allegations of wrongful actions by UK service personnel against Iraqi nationals during the conflict in Iraq. The leading case (Mousa) was by way of claims for judicial review, in particular with respect to the Secretary of State's decision not to hold a public inquiry into the allegations but instead to investigate those of the allegations which are new and to reinvestigate those allegations previously made and investigated. The Secretary of State's decision is to do this through a dedicated team (of service police from the Royal Military Police Special Investigation Branch, with extra resources from experienced civilian prosecutors) reporting ultimately to the Provost Marshal of the Royal Military Police. The exercise of investigatory powers and the decision-making process is under the 2006 Act.

27. At a hearing in November the High Court considered in detail the regime under the 2006 Act summarised in paragraphs 14 to 21 above. This included consideration whether investigation under the new provisions of the 2006 Act will be sufficiently independent and effective to meet the requirements of Article 3.

28. The two main assertions by the Claimants in Mousa relevant to the ECHR compliance of the 2006 Act were that:

a) the Royal Military Police (to whom the team investigating the allegations, known as the "IHAT", would report) were not sufficiently independent for the purpose of Articles 3;[68] and

b) the provisions of the 2006 Act operated against such independence because they required at least some cases to be referred to the CO for decision on whether to prosecute and on how, if at all, the case should proceed.[69]

29. The Secretary of State argued in reply that the Royal Military Police (and therefore the IHAT) were sufficiently independent and that, under the 2006 Act almost all relevant cases would have to be referred for decision to the Director of Service Prosecutions; and that in the few cases in which the decision might lie with the CO, it was difficult to conceive of the CO not referring the case in practice to the Director.[70] The court accepted the Secretary of State's contentions on both issues, and the claim for judicial review was dismissed.[71]

30. Bill provisions relating to service police forces (clauses 3 to 5). Not withstanding the decision in Mousa, the Bill contains three clauses intended to highlight and buttress the structural independence of the service police and to support best practice in the conduct of investigations.

31. The relevant provisions are as follows:

a) clause 3 adds a new section 115A to the 2006 Act, providing that the heads (Provost Marshals) of each of the service police forces has a duty to seek to ensure that its investigations are free from "improper interference". "Improper interference" is defined to include an attempt by anyone who is not a service policeman to direct an investigation;

b) clause 4 provides for inspection by Her Majesty's Inspectors of Constabulary of the independence and effectiveness of service police investigations. The inspectors' reports are to be laid before Parliament;

c) clause 5 provides for the appointment of Provost Marshals to be by Her Majesty and that (in line with what is already the policy) only an officer of a service police force may be appointed by her to be a Provost Marshal.

32. Eskelinen v Finland (2007)[72] and Crompton v UK (2009).[73] Members of the armed forces have no contract of employment and no system of collective bargaining. Pay, allowances and other benefits are determined and altered unilaterally. The armed forces do not have access to employment tribunals except with respect to equal pay and discrimination. It has therefore long been recognised that members of the armed forces should have some other effective way of obtaining redress other grievances. This is provided for in the 2006 Act (developing provisions in previous legislation).

33. The process under the 2006 Act is essentially internal to the armed forces, subject to judicial review. Before the 2006 Act was introduced into Parliament the process was considered in relation to Article 6. It was concluded on the basis of Pellegrin v France (1999)[74] that Article 6 did not apply to members of the armed forces in relation to the determination of civil rights, at least in relation to disputes akin to employment disputes, because the armed forces are bound by a special bond of trust and loyalty towards the State.

34. The European Court in Eskelinen held that, for Article 6 to be included in relation to civil rights:

a) the State in question must have expressly excluded access to a court for the post or category of staff in question;

b) the exclusion must be justified on objective grounds in the State's interest

The court explained that the special bond of trust and loyalty referred to in Pellegrin was not sufficient to determine whether there were sufficient grounds for the exclusion. The State had also to show that the subject matter of the dispute was related to the exercise of State power or called into question the special bond. The court made it clear that there was a presumption that Article 6 applied to ordinary employment disputes such as ones relating to pay.

35. In Crompton the complainant was in a very special category within the armed forces, the permanent staff of the Territorial Army. Most of these staff look after stores or provide clerical support. Moreover Mr Crompton's post had so little of the military about it that it was civilianised. He was made redundant. He brought a complaint about the process by which he was made redundant. While not conceding that Article 6 applied generally to the determination of civil rights between members of the armed forces and the State, the MoD accepted, on the basis of the very special facts of the case, that Article 6 was applicable. But, the MoD argued, the availability of judicial review of the Defence Council's decision on his complaint was sufficient to render the redress of complaints process compliant.

36. The European Court held that, on the facts of the case, judicial review was sufficient. The Court however made it clear that this would not always be the case where Article 6 applied. Broadly speaking, the Court's view was that Article 6 was not excluded wherever a matter went to the determination of civil rights between members of the armed forces and of the State. The Court's judgment indicated that judicial review would be insufficient to provide compliance with Article 6 if all the following circumstances applied:

a) a civil right was in issue (and this is likely to be the case in a straightforward employment case, such as non-payment of pay or discharge from the armed forces);

b) the dispute did not call into question the special duty of trust and loyalty which States may expect from their armed forces;

c) the dispute was not one for which there were compelling reasons for the decision to be made by the chain of command; and

d) the proper resolution of the dispute turned on a question of fact.

Where all these circumstances applied, an independent and impartial tribunal appropriate to deciding questions of fact would be required by Article 6.

37. Following the judgment in Crompton, the Ministry of Defence concluded that, in cases where:

a) Article 6 applies (as explained in paragraph 36(a) to (c) above),

b) there is no access to an employment tribunal, and

c) a question of fact is central to the dispute,

the risk of a finding of incompatibility with Article 6 would be much reduced by ensuring that an independent, quasi-judicial body makes the finding of fact and that the Ministry of Defence was bound by that finding.

38. Clause 20 of the Bill (service complaint panels) has been designed to allow the judgment in Crompton to be met. Clause 20(5) amends the 2006 Act to empower the Defence Council (the highest level of the Ministry of Defence as regards command and administration of the armed forces) to appoint a panel (to deal with complaints) composed, or including a majority, of independent members.

39. Clause 20(7) amends the 2006 Act to empower the Secretary of State to make regulations (subject to affirmative resolution procedure) requiring in prescribed descriptions of complaint the delegation of functions to a panel composed, or including a majority, of independent members.

40. The above approach reflects the view that it is not yet easy to be sure how the European Court's approach would apply to different cases, or to formulate confidently rules as to when an independent fact-finding tribunal will be required. It is considered that further development of the court's jurisprudence is likely. The purpose of the clause is accordingly to allow decisions to be taken on a case by case basis, but also to allow general rules to be laid down as the application of Article 6 to complaints by service personnel becomes clearer.

41. For the purpose of the new provisions under clause 20, independent members must not be members of the armed forces or civil servants (New section 336A(3) of the 2006 Act, added by clause 20(7) and the existing section 336(7) of the 2006 Act).

42. Findings of Guilty and Not Guilty in the Court Martial by simple majority verdict. Under section 160 of the 2006 Act the finding of the Court Martial must be decided by a majority of the votes of the lay members of the court (usually a panel of officers and warrant officers).

43. The Judge Advocate General has a number of functions in relation to trials by the Court Martial and other service courts. These include sitting as a judge (called a "judge advocate") in service courts and selecting judge advocates (who are appointed by the Lord Chancellor) to sit in individual cases. Under section 34 of the Court Martial Appeals Act 1968 he may (by reference to the conviction of a person by the Court Martial) refer to the Court Martial Appeal Court a finding of the Court Martial which appears to him to raise "a point of law of exceptional importance". The Judge Advocate General under section 34 of the 1968 Act referred to the Court Martial Appeal Court the question whether a finding of guilt by a simple majority of the lay members renders the trial unfair for the purposes of Article 6. He asked the court whether, if that basis of making the finding does render the trial unfair, the court would make a declaration of incompatibility under section 4 of the Human Rights Act 1998.

44. As the Judge Advocate General sought a declaration of incompatibility, the Secretary of State was under section 5(2) of the Human Rights Act 1998 joined as a party. The Court Martial Appeal Court gave its judgment on 21 December 2010,[75] rejecting the Judge Advocate General's submissions that verdicts by simple majority were inherently unsafe and non-compliant with the requirement for a fair trial under Article 6.

Other provisions of the Bill raising ECHR issues

45. Power of judge advocate to authorise entry and search (clause 7). Under section 83 of the 2006 Act a judge advocate may in specified circumstances issue a warrant authorising a service policeman to enter and search certain premises. Clause 7 of the Bill provides for a new section 83. As amended, that section will allow the issue of a warrant for more than one premises and entry to premises on more than one occasion. The new section 83, like the current one, will permit the issue of warrants only for accommodation provided for those subject to service jurisdiction and for premises occupied as residence by such persons (these types of accommodation and premises are referred to below and in the Bill as "relevant residential premises"). The clause requires consideration of Article 8 and of Article 1, Protocol 1. However the clause mirrors section 8 of the Police and Criminal Evidence Act 1984 and is subject to the further restriction mentioned above to premises of persons within service jurisdiction. On this basis it is considered to be both necessary for the purposes of the detection and prevention of crime and proportionate to that aim.

46. Power to make provision about access to excluded material etc (clause 8). Section 86 of the 2006 Act empowers the Secretary of State to make provision enabling service police to obtain access to excluded material or special procedure material on certain premises. Excluded material and special procedure material have broadly the same meaning as in the Police and Criminal Evidence Act 1984 and the Secretary of State's power is to make equivalent provision to that in the 1984 Act relating to such material.

47. However, the provision that may be made under section 86 is limited to relevant residential premises. This makes the existing provision for access largely ineffective because material which qualifies as excluded material or special procedure material (such as bank records or social workers' files) is unlikely to be held on such premises. Clause 7 amends section 86 so that the Secretary of State may make provision enabling the service police to obtain access to material (other than legally privileged material) on premises which cannot be searched under section 83. Section 86 as amended would permit provision enabling a judge advocate to grant access to the material by making a "production order", which requires the person apparently in possession of the material to produce it to be taken away by a service policeman, or to give a service policeman access to it.

48. The clause requires consideration of Article 8 and Article 1, Protocol 1. However the provision allowed by the clause mirrors that in Schedule 1 to the 1984 Act and is subject to the further restriction that in the case of material not on relevant residential premises, section 86 as amended would not permit provision enabling a judge advocate to issue a search warrant. Instead section 86 would only permit provision enabling a failure to comply with a production order to be treated as contempt of court. Direct access by means of a warrant is therefore excluded if the premises are not relevant residential premises. On this basis it is considered that the clause is both necessary for the purposes of the detection and prevention of crime and proportionate to that aim.

49. Access to service living accommodation (paragraph 4 of Schedule 3). The provision for the 2006 Act which deals with the powers of search and entry replaced provisions of the Armed Forces Act 2001 in which such powers could be exercised by reference to "service living accommodation", defined in the 2001 Act as including accommodation occupied either by service personnel or by civilians to whom service law applied. In the 2006 Act the expression was erroneously defined to include only service personnel. Paragraph 4 of the Schedule corrects the error by including accommodation occupied by any of the limited categories of civilian, who, outside the United Kingdom, are subject to service jurisdiction.

50. Again the provision requires consideration of Article 8 and Article 1, Protocol 1. However, the power in question goes no further than those applied to service personnel or, under the 1984 Act, to the civilian population generally. The provision is necessary for the prevention and detection of crime and is considered proportionate, as being completely consistent with those under the 1984 Act.

51. Testing for alcohol and drugs (clause 11). The 2006 Act preserves the offence of unfitness for duty through alcohol or drugs. Clause 10 of the Bill provides for service personnel to be guilty of an offence if they exceed a prescribed limit on alcohol when performing, or when they might reasonably be expected to perform, a safety-critical duty. Clause 11 empowers a CO to require a member of the armed forces to take a preliminary test for drugs or alcohol where the CO has reasonable grounds to believe that the person has committed a "relevant offence". One relevant offence is that of unfitness for a duty which, if carried out with impaired ability, would result in a risk of death, serious injury, serious damage to property or serious environmental harm. The other relevant offence is that of exceeding a prescribed limit on alcohol imposed in respect of prescribed safety-critical duties. The service police, investigating such an offence fully may require the provision of breath, blood or urine samples. The same testing regime applies to the limited categories of civilians who are subject to service jurisdiction but only in respect of offences under the 2006 Act by reference to specified sections of the Railways and Transport Safety Act 2003 (maritime and aviation offences) or an offence under the 2006 Act of conduct outside the United Kingdom which would be one of those offences under the 2003 Act if committed in England or Wales.

52. The provisions require consideration of Articles 6, in particular the right against self-incrimination, and 8. In relation to both Articles it is considered that the provisions are in response to the interests of public safety and are proportionate because the powers are restricted to safety-critical duties.

53. Service sexual offences prevention orders (clause 17). Part 2 of the Sexual Offences Act 2003 (SOA 2003) gives both civilian and service courts the power to make sexual offences prevention orders when dealing with an offender for certain sexual offences or offences of violence. A sexual offences prevention order made under these provisions protects members of the public or any particular members of the public in the United Kingdom from serious sexual harm from the defendant. Clause 17 extends the powers of the Court Martial and the Service Civilian Court so that they can make service sexual offences prevention orders for the protection of members of the service community outside the United Kingdom. It is recognised that the powers under the SOA 2003 themselves raised questions about the Convention, in particular Articles 5, 6, 7 and 8.

54. The orders are only available against members of the armed forces, the limited categories of civilians who are subject to service jurisdiction when outside the United Kingdom and persons who a service court is satisfied are intending to become, or likely to become, such civilians. It is considered necessary to cover the last group mainly because members of service families cease to be within service jurisdiction whenever they return to the United Kingdom. In such a case the court will have to be satisfied that the defendant intends or is likely, to rejoin his family outside the United Kingdom and become a civilian subject to service discipline again. It may make a service sexual offences prevention order if this is necessary for the protection of the service community outside the United Kingdom.

55. Prohibitions within the order must be necessary for the purpose of protecting the service community outside the United Kingdom from serious sexual harm from the defendant. The power to make the orders is otherwise subject to the same restrictions as those under SOA 2003, and a right of appeal is provided.

56. The clause also empowers the Court Martial to make new extended prohibitions orders in respect of a person subject to service law or civilian subject to service jurisdiction. These orders can be made where the person is subject to a sexual offences prevention order made under Part 2 SOA 2003 (the principal sexual offences prevention order), and there are members of the service community outside the United Kingdom who would be protected by the sexual offences prevention order if they were in the United Kingdom. An extended prohibition order will extend the prohibitions in the principal sexual offences prevention order for the protection of members of the service community outside the United Kingdom. The orders will be made on the application of a Provost Marshal. The Court Martial must make an extended prohibitions order if is satisfied that there is in existence a sexual offences prevention order made under Part 2 SOA 2003 in respect of a person, and that there are members of the service community outside the United Kingdom who would be protected by the sexual offences prevention order if they were in the United Kingdom.

57. An extended prohibitions order is a mirror order which will stand or fall with the principal sexual offences prevention order. However, the clause also provides for an appeal to the Judge Advocate General against the making of an extended prohibitions order.

58. In view of the limitations under the clause, closely reflecting those under the 2003 Act, it is considered that the provision is proportionate to the need to provide for members of the armed forces community outside the United Kingdom provision equivalent to that provided within the United Kingdom. The option of relying on local jurisdictions was considered, but it is decided that they would be ineffective to deal with situations arising within United Kingdom families living within United Kingdom military bases.

Other provisions

59. It is not considered that any other provision of the Bill raises issues in relation to the Convention or other human rights instruments.

60. It is on this basis that the Bill is considered to be compatible with the Convention, and Ministers were advised that they might make a statement of compatibility under section 19 of the Human Rights Act 1998.

12 January 2011

59 (1997) 24 EHRR 221. Back

60 (2002) 34 EHRR 1253. Back

61 (2003) 1 AC 734. Back

62 Judgments 16 Dec 2003: nos. 57067/00 and 48843/99. Back

63 Unreported; but a copy of the judgment can be provided. Back

64 Judgment 24 Oct 2006: no. 40426/98. Back

65 Sections 155(4) of the 2006 Act. Back

66 S.I. 2009/2041. Back

67 (2010) EWHC 3304 (Admin): case no. CO/1684/2010 Back

68 Paragraphs 33 and 34 of the judgment Back

69 Paragraph 45 of the judgment Back