The Armed Forces (Alignment of Service Discipline Acts) (No. 2) Order 2008

Statutory Instruments

2008 No. 3294

Defence

The Armed Forces (Alignment of Service Discipline Acts) (No. 2) Order 2008

Made

22nd December 2008

Coming into force in accordance with Article 1

The Secretary of State makes the following Order in exercise of the powers conferred by section 381(1) of the Armed Forces Act 2006(1):

In accordance with section 373(3) of the Armed Forces Act 2006 a draft of this instrument was laid before, and approved by a resolution of, each House of Parliament.

Citation and commencement

1.  This Order may be cited as the Armed Forces (Alignment of Service Discipline Acts) (No. 2) Order 2008 and shall come into force on the day after the day on which it is made.

Prosecuting authority for the Army

2.  For section 83A of the Army Act 1955(2) (the prosecuting authority) substitute—

“83A    The prosecuting authority

(1) Her Majesty may appoint a person as the prosecuting authority for the Army; and in this Act “the prosecuting authority” means the person so appointed.

(2) A person may be appointed as the prosecuting authority only if the person—

(a) has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) is an advocate or solicitor in Scotland of at least ten years’ standing;

(c) is a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, of at least ten years’ standing; or

(d) has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, has had those rights and duties for at least ten years, and is subject to punishment or disability for breach of professional rules.

(3) The prosecuting authority shall hold and vacate office in accordance with the terms of that authority’s appointment.

(4) In this section “relevant territory” means—

(a) any of the Channel Islands;

(b) the Isle of Man;

(c) a country other than the United Kingdom that is a member of the Commonwealth; or

(d) a British overseas territory.”

Prosecuting authority for the Royal Air Force

3.  For section 83A of the Air Force Act 1955(3) (the prosecuting authority) substitute—

“83A    The prosecuting authority

(1) Her Majesty may appoint a person as the prosecuting authority for the Royal Air Force; and in this Act “the prosecuting authority” means the person so appointed.

(2) A person may be appointed as the prosecuting authority only if the person—

(a) has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) is an advocate or solicitor in Scotland of at least ten years’ standing;

(c) is a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, of at least ten years’ standing; or

(d) has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, has had those rights and duties for at least ten years, and is subject to punishment or disability for breach of professional rules.

(3) The prosecuting authority shall hold and vacate office in accordance with the terms of that authority’s appointment.

(4) In this section “relevant territory” means—

(a) any of the Channel Islands;

(b) the Isle of Man;

(c) a country other than the United Kingdom that is a member of the Commonwealth; or

(d) a British overseas territory.”

Prosecuting authority for the Royal Navy

4.  For section 52H of the Naval Discipline Act 1957(4) (the prosecuting authority) substitute—

“52H    The prosecuting authority

(1) Her Majesty may appoint a person as the prosecuting authority for the Royal Navy; and in this Act “the prosecuting authority” means the person so appointed.

(2) A person may be appointed as the prosecuting authority only if the person—

(a) has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) is an advocate or solicitor in Scotland of at least ten years’ standing;

(c) is a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, of at least ten years’ standing; or

(d) has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, has had those rights and duties for at least ten years, and is subject to punishment or disability for breach of professional rules.

(3) The prosecuting authority shall hold and vacate office in accordance with the terms of that authority’s appointment.

(4) In this section “relevant territory” means—

(a) any of the Channel Islands;

(b) the Isle of Man;

(c) a country other than the United Kingdom that is a member of the Commonwealth; or

(d) a British overseas territory.”

Transitory provisions

5.  References to “the Court of Judicature of Northern Ireland” in section 83A(2)(c) of the Army Act 1955, section 83A(2)(c) of the Air Force Act 1955 and section 52H(2)(c) of the Naval Discipline Act 1957, as substituted by this Order, shall have effect as if they were references to “the Supreme Court of Northern Ireland” until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005((5) comes into force.

Kevan Jones

Parliamentary Under Secretary of State

Ministry of Defence

22nd December 2008

EXPLANATORY NOTE

(This note is not part of the Order)

Articles 2, 3 and 4 replace those provisions of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 that provide for the appointment of a qualified officer to be the prosecuting authority for the relevant service. The new provisions correspond to section 364 of the Armed Forces Act 2006 which provides for Her Majesty to appoint any person who is qualified in accordance with that section as the Director of Service Prosecutions. Article 5 makes transitory provisions.

(1)

2006 c. 52

(2)

1955 c. 18. Section 83A of the Army Act 1955 was inserted by the Armed Forces Act 1996 (c. 46), section 5 and Schedule 1, Part 2, paragraph 14

(3)

1955 c. 19. Section 83A of the Air Force Act 1955 was inserted by the Armed Forces Act 1996, section 5 and Schedule 1, Part 2, paragraph 15.

(4)

1957 c. 53. Section 52H of the Naval Discipline Act 1957 was inserted by the Armed Forces Act 1996, section 5 and Schedule 1, Part 2, paragraph 16.

(5)

2005 c. 4