The Armed Forces Act 2001 was given the Royal Assent in May 2001, but is not yet fully in force. When it is, its effect will be to continue the steady progression of changes to the military justice systems. The contents of the Act should be considered at length, as it is a piece of legislation that has filled a number of gaps which have existed for some time and which have in some respects hitherto (and unjustifiably) seemingly been given low priority.
[See below for Commencement Orders]
The key aspects to this legislation are:
| 1. | Statutory Powers of search and seizure (of premises too), including stop and search for the service police. A commanding officer will retain a residual power to authorise searches in exceptional circumstances and subject to retrospective review by a judicial officer. Judicial officers empowered to issue search warrants and to issue warrants (even hearing an application over live TV link) for the arrest of persons who may fail to comply with a summons to attend a hearing. Limited powers of search on CO's authority in relation to a person under the commanding officer's command, or a vehicle in the charge of such a person. (In force) |
| 2. | Warrant Officers to sit on courts-martial (In force) |
| 3. | A right for the Crown to ask the Attorney General to refer a sentence to the Court-Martial Appeal Court where it is considered unduly lenient (In force as from 28th February 2007 - see below Commencement) |
| 4. | A power for courts to make wasted costs orders against either the Crown or defence for improper, unreasonable or negligent action of a representative resulting in the other party incurring costs. There is also a section dealing with the recovery by the Services of travel and accommodation costs of witnesses who are unreasonably required by the defence to attend a hearing. (In force) |
| 5. | Extending the scope for dealing summarily with offences allegedly committed by officers (In force). |
| 6. | Excluding most court-martial proceedings from the possibility of judicial review (In force for those cases directed for trial after 28 Feb 02). |
| 7. | Clarifying Service courts' powers to compel the production of evidence or the attendance of witnesses. |
| 8. | A power for the Secretary of State to make orders applying changes in civilian criminal justice legislation to the armed forces. (In force) |
| 9. | Protection of children in families with the armed forces abroad. New provisions apply the power to make assessment and protection orders to any child who is residing, or staying, with such a family abroad. |
| 10. | The categories of civilians who are subject to Service law whilst overseas are set out in the SDAs now include persons with their own businesses (In force). |
| 11. | Removal of references to the death penalty from the three Service acts and, where these relate to specific offences, replace them with references to a penalty of imprisonment or any less punishment authorised by the Act (In force). |
| 12. | Mandatory sentences in circumstances where an accused is repeatedly convicted of certain offences. Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that anyone over 18 convicted of a second serious offence is to receive a sentence of life imprisonment unless the court is of the opinion that there are exceptional circumstances which justify not imposing such a sentence. The offences which this provision covers are listed in the section and include attempted murder, manslaughter, rape, robbery and carrying a firearm with criminal intent. |
| 13. | Where there has been an incident which, in the opinion of a designated officer, results in or creates a risk of death, serious injury or serious property damage, there are powers to test for alcohol or drugs. Testing may be necessary to show whether the use of drugs or alcohol was a possible contributory factor to the incident. The samples taken may not be used in evidence against anyone in any disciplinary proceedings. They may, however, be used to inform Service Boards of Inquiry. (In force 3rd February 2006, see The Armed Forces Act 2001 (Commencement No. 6) Order 2006) |
| 14. | Custody provisions where trials may occasionally be adjourned for considerable periods. In these circumstances, the trial judge advocate may be assigned to another trial or be otherwise unavailable, and it would be more practical for the exercise of these powers to revert to a judicial officer. The Army and Air Force Acts are amended and allow the trial judge advocate to order, on an adjournment, that these powers are be exercisable by a judicial officer, instead of by the judge advocate. (In force. See S.I. 2006 No. 2309) |
| Commencement Orders: | |
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Section 113C of the Army Act 1955 and the Air Force Act 1955 and section 71AC of the Naval Discipline Act 1957 empower the Attorney General to refer offences that in the civilian system would be indictable only to the Courts-Martial Appeal Court, with the leave of that court, where he considers that the sentence imposed by a court-martial was unduly lenient. The Secretary of State may by Order, made under section 113B(1)(a) of the Army Act 1955/Air Force Act 1955 or section 71AB(1)(a) of the Naval Discipline Act 1957 extend the scope of the Attorney General's powers by specifying certain offences, where the corresponding civil offences are triable either summarily or on indictment, where he considers that the sentence imposed by a court-martial was unduly lenient. [See also below, Statutory Instrument 2007 No. 662 (C. 28)].
The Rules set out in the Schedule amend the Courts-Martial Appeal Rules 1968 (S.I. 1968/1071). They make specific procedural provision with respect to references and applications for reviews of sentencing by the Courts-Martial Appeal Court where the Attorney General considers a sentence awarded by a court-martial for a qualifying offence to be unduly lenient. These Rules are broadly equivalent to those provisions in Part 70 of the Criminal Procedure Rules (S.I. 2005/384) and supplement the Statutory Instrument 2007 No. 660, The Courts-Martial Appeal (Review of Sentencing) Regulations 2007.
This Order brings into force section 21 of the Armed Forces Act 2001. Section 21 inserts new sections into the Army Act 1955 (c. 18), the Air Force Act 1955 (c. 19) and the Naval Discipline Act 1957 (c. 53). The new sections make provision equivalent to that provided for in the civilian system by sections 35 and 36 of the Criminal Justice Act 1988 (c. 33), for the Attorney General to refer a case to the Courts-Martial Appeal Court where he considers that a sentence passed on a person by a court-martial was unduly lenient. This power is only exercisable in relation to those offences where the corresponding civil offence would be triable only on indictment.
These Regulations make provision supplementary to those contained in sections 113B and 113C of the Army Act 1955 and the Air Force Act 1955, sections 71AB and 71AC of the Naval Discipline Act 1957 and The Courts-Martial (Reviews of Sentencing) (Categories of Offences) Order 2007 with respect to references and applications for reviews of sentencing by the Courts-Martial Appeal Court where the Attorney General considers a sentence awarded by a court-martial for a qualifying offence to be unduly lenient. A time limit of 28 days is imposed, within which notice of application for leave to refer a case to the Courts-Martial Appeal Court must be given
Applies sections 34 to 37 (with interpretative provisions at section 38), which introduce measures to allow a court to draw such inferences as appear proper from the failure or refusal of an accused person to provide information in defined circumstances. The Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 1997, applies those provisions, with modifications, to the proceedings set out in article 3(2). The 1994 Act has been amended by the Youth Justice and Criminal Evidence Act 1999, so as to prohibit the drawing of inferences from an accused's silence if he has not been allowed an opportunity to consult a solicitor in circumstances where sections 34, 36 and 37 would otherwise apply. This Order applies those new provisions, with appropriate modifications, to the Armed Forces. See also the explanatory notes at the end of the Order for further information.
This Order brings into force on 3rd February 2006 the provisions of the Armed Forces Act 2001 referred to in article 2. Sections 32 and 33 grant powers to request a sample to test for the presence of alcohol or drugs after the occurrence of a serious incident. Section 32 enables the Defence Council to make regulations as to such post incident testing and section 33 makes provision for the interpretation of section 32.
This Order brings into force sections 26, 27 and 28 of the Armed Forces Act 2001. Section 26 provides for the making of regulations empowering courts to order the payment to a party to proceedings for an offence under the Army Act 1955 (c.18), the Air Force Act 1955 (c.19) or the Naval Discipline Act 1957 (c.53) (the services Acts) of costs incurred by that party as a result of the unnecessary or improper act or omission of another party. Section 27 empowers a court in any proceedings for an offence under any of the services Acts to disallow the wasted costs of a party's legal or other representative or to order that representative to meet the wasted costs incurred by another party. Section 28 contains provisions supplementary to sections 26 and 27.
This Order brings into force section 20 of the Armed Forces Act 2001. The Armed Forces Discipline Act 2000 (c. 4) amended the Army Act 1955 (c. 18), the Air Force Act 1955 (c. 19) and the Naval Discipline Act 1957 (c. 53) so as to establish summary appeal courts to hear appeals from the armed forces' systems of summary discipline. Section 20 of the 2001 Act enables the Secretary of State to provide by order that warrant officers are to be eligible for membership of those courts.
Article 2 of this Order brought into force on 30th September 2003 sections 2 to 11 and 13 to 16 of the Armed Forces Act 2001. Those sections include powers of entry, search and seizure in the investigation of offences under the Army Act 1955, the Air Force Act 1955, and the Naval Discipline Act 1957. Article 2 of this Order also brought into force on the same date section 31 of the Act. Section 31 provides a general order-making power for the Secretary of State to make for the armed forces provisions equivalent to those made by any civilian criminal justice Act (or any subordinate legislation under such Act) made in the same session as, or after the session in which, the Act was enacted.
This Order prescribes the powers and duties of a judicial officer when conducting a review, under section 8 of the Armed Forces Act 2001, of a search authorised by an officer under section 7 of that Act and of the seizure and retention of anything seized and retained during the search.
This Order deals primarily with the powers of service police under Part 2 of the Armed Forces Act 2001 relating to persons subject to service law. The main provisions are, subject to modifications, equivalent to certain provisions of the Police and Criminal Evidence Act 1984 ("PACE") relating to powers of entry, search and seizure. This Order appointed 30th September 2003 as the date on which codes of practice issued under section 113(3) of the Police and Criminal Evidence Act 1984 came into operation. The codes of practice are - |
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