The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

1. Introductory Text

2. PART 1 GENERAL

   1. 1. Citation and commencement

   2. 2. Interpretation

   3. 3. SDA offences to be dealt with under this Order

   4. 4. Offences triable by civilian court

   5. 5. “Service offence” in AFA 2006 not to include offences committed before commencement

3. PART 2 LIABILITY FOR SDA OFFENCES

   1. 6. Liability for SDA offences

   2. 7. Punishment may not be more severe than maximum court-martial punishment

   3. 8. Civilian offenders

4. PART 3 CERTAIN ACTS BEFORE COMMENCEMENT

   1. 9. Offence incomplete at commencement

   2. 10. Course of conduct carried on over commencement

   3. 11. Conduct at a time unknown

5. PART 4 JURISDICTION

   1. 12. Jurisdiction of the Court Martial

   2. 13. Jurisdiction of the Service Civilian Court

   3. 14. Charges capable of being heard summarily

   4. 15. Offences that may be dealt with at a summary hearing

   5. 16. Charges in respect of SDA offences that may be heard summarily only with permission or by senior officer

6. PART 5 TIME LIMITS FOR COMMENCING PROCEEDINGS ETC

   1. 17. No charge to be brought where SDA time limit for trial expired before commencement etc

   2. 18. General time limits for charging servicemen or former servicemen with SDA offences

   3. 19. Time limits for charging civilian formerly subject to SDAs

   4. 20. Time limit for charging civilian formerly subject to service discipline with SDA offence

   5. 21. Time limit for charging SDA offence of failing to comply with requirement imposed on release from custody

   6. 22. Time limits for charging RFA offences

   7. 23. False statements made on enlistment

   8. 24. Breach of community supervision order

7. PART 6 DOUBLE JEOPARDY

   1. 25. Saving of existing bars to service proceedings

   2. 26. Saving of existing bars to civilian court proceedings

   3. 27. Application of AFA 2006 ss. 63 and 64

   4. 28. Application of AFA 2006 s. 66

8. PART 7 ARREST, SEARCH AND ENTRY

   1. 29. “Service offence”

   2. 30. Powers of arrest

   3. 31. Search on arrest

   4. 32. Stop and search

   5. 33. Powers of entry, search and seizure

9. PART 8 CUSTODY

   1. CHAPTER 1 General

      1. 34. “Service offence”

   2. CHAPTER 2 Custody without charge

      1. 35. Limitations on custody without charge of person arrested before commencement

      2. 36. Authorisation by CO of custody without charge

      3. 37. Extension by judge advocate of custody without charge

      4. 38. Persons arrested while in custody

      5. 39. Custody without charge: other cases

   3. CHAPTER 3 Custody after charge

      1. 40. Custody after charge

      2. 41. Arrest after charge

10. PART 9 INVESTIGATION, CHARGING AND MODE OF TRIAL

    1. 42. “Service offence”, “Schedule 2 offence”

    2. 43. Duties and powers of commanding officers in relation to allegations etc

    3. 44. Charges preferred by prosecuting authority: allocation for Court Martial trial

    4. 45. Effect of time limits for court-martial trial

    5. 46. Charges reported to commanding officer: allocation for summary hearing

    6. 47. Exceptions to allocation for summary hearing

    7. 48. Effect of time limits for trial in relation to summary hearing

    8. 49. Charges allocated for summary hearing: restriction on CO’s powers in certain cases

    9. 50. Deemed referrals under AFA 2006 s. 116(3)

    10. 51. Part of a case referred back under SDAs: power of CO to charge etc

    11. 52. Charges directed to be tried by a Standing Civilian Court

    12. 53. Effect of time limits for court-martial trial in relation to SCC

11. PART 10 SUMMARY DEALING

    1. CHAPTER 1 Proceedings in progress at commencement

       1. 54. Summary hearing where court-martial trial declined before commencement

       2. 55. Powers of punishment where finding reached before commencement

       3. 56. Deemed disrating

       4. 57. Approval of summary punishment (NDA cases)

       5. 58. Warrant punishments

    2. CHAPTER 2 Modifications of AFA 2006 for charge current at commencement

       1. 59. Applications for purposes of AFA 2006 made before commencement

       2. 60. Permissions for purposes of AA 1955 or AFA 1955 to award extended detention

       3. 61. Certain consequences of election for court-martial trial

    3. CHAPTER 3 Activation of SDA suspended sentence of service detention following civilian conviction

       1. 62. Activation where application for approval made before commencement

    4. CHAPTER 4 The Summary Appeal Court

       1. 63. Right of appeal

       2. 64. Appeal brought but not heard before commencement

       3. 65. Officers and warrant officers ineligible for membership of court

       4. 66. Punishments substituted for punishments imposed under AA 1955

       5. 67. Punishments substituted for punishments imposed under AFA 1955

       6. 68. Punishments substituted for punishments imposed under NDA 1957

       7. 69. Appeals from decisions of a summary appeal court

    5. CHAPTER 5 Review of summary findings and punishments

       1. 70. Power to review summary findings and punishments

       2. 71. Power to complete review begun before commencement

       3. 72. Powers on a review carried out or completed under AFA 2006

       4. 73. Powers where review completed before commencement

12. PART 11 TRIAL BY COURT MARTIAL

    1. CHAPTER 1 Trial by Court Martial

       1. 74. Pre-commencement selection of members of Court Martial

       2. 75. Eligibility to be member of the court

       3. 76. Arraignment before commencement

       4. 77. Power to convict of alternative offences

       5. 78. Sentencing powers where election for Court Martial trial

       6. 79. Appeals against pre-commencement orders restricting publicity etc

    2. CHAPTER 2 Unfitness to stand trial and insanity

       1. 80. Continuation of hospital orders etc made before commencement

       2. 81. Remission for trial

       3. 82. Finding that defendant who is unfit to stand trial did the act or made the omission charged

       4. 83. Powers to make hospital orders etc

    3. CHAPTER 3 Variation of court-martial sentence

       1. 84. Variation of court-martial sentence

13. PART 12 SENTENCING POWERS IN RELATION TO SDA OFFENCES

    1. CHAPTER 1 Consecutive sentences

       1. 85. Consecutive custodial sentences and consecutive service detention

    2. CHAPTER 2 Young offenders

       1. 86. Offenders under 18 convicted of certain serious SDA offences: power to detain for specified period

       2. 87. Offenders under 18: detention and training orders

    3. CHAPTER 3 Mandatory etc sentences

       1. 88. Mandatory life imprisonment etc

       2. 89. Sentences required by SDAs

    4. CHAPTER 4 Court orders other than sentences

       1. 90. Service restraining orders

       2. 91. Recognizances

    5. CHAPTER 5 Miscellaneous

       1. 92. Power of Supreme Court to make service compensation order

14. PART 13 ACTIVATION OF SUSPENDED SENTENCES

    1. CHAPTER 1 Interpretation

       1. 93. Suspended sentences

    2. CHAPTER 2 Activation of suspended SDA sentence by the Court Martial

       1. 94. Activation of suspended SDA sentence of imprisonment

       2. 95. Activation of suspended SDA sentence of service detention on conviction by Court Martial

       3. 96. Activation of suspended NDA 1957 sentence of service detention following conviction by another court or a CO

    3. CHAPTER 3 Activation of suspended NDA 1957 sentence of service detention by CO or SAC

       1. 97. Activation by CO

       2. 98. Powers of SAC

       3. 99. SAC powers where suspended sentence of more than 90 days

    4. CHAPTER 4 Consecutive activated sentences

       1. 100. Activated SDA sentence of imprisonment

       2. 101. Activated sentence of service detention

15. PART 14 SENTENCING PRINCIPLES AND PROCEDURES

    1. 102. Sentencing principles and procedures: references to “service offence”, “service custody”, etc

    2. 103. Increase in sentence for racial or religious aggravation

    3. 104. Limit on combined term of service detention

    4. 105. Limit on combined term: supplementary

    5. 106. Crediting of time in service custody

16. PART 15 APPEALS AND REFERENCES TO THE COURT MARTIAL APPEAL COURT

    1. 107. Interpretation

    2. 108. Right of appeal against conviction or sentence by court-martial

    3. 109. Right of appeal against activation of suspended SDA sentence by Court Martial or court-martial

    4. 110. Application for leave to appeal against sentence by court-martial where previous conviction set aside

    5. 111. Quashing of conviction by court-martial

    6. 112. Power to re-sentence when some but not all convictions successfully appealed

    7. 113. Substitution of conviction on different charge otherwise than after guilty plea

    8. 114. Substitution of conviction on different charge after guilty plea

    9. 115. Variation of conviction so as to attract different sentence

    10. 116. Effect of appeal, or application for leave to appeal, against sentence

    11. 117. Powers of Appeal Court on appeal against sentence

    12. 118. Term of sentence

    13. 119. Retrial authorised by Appeal Court

    14. 120. Appeal against finding of not guilty by reason of insanity

    15. 121. Appeal against finding of unfitness to stand trial

    16. 122. Appeal against order made in cases of insanity or unfitness to stand trial

    17. 123. Costs of successful appeal

    18. 124. Reference of cases by Service authorities

    19. 125. Provision of record of proceedings of court-martial

    20. 126. Appeal to House of Lords or Supreme Court

    21. 127. Duties of registrar with respect to appeals etc

    22. 128. Saving for prerogative

    23. 129. Review of unduly lenient sentence for SDA offence

    24. 130. Compensation for miscarriages of justice

17. PART 16 STANDING CIVILIAN COURTS AND THE SERVICE CIVILIAN COURT

    1. 131. Constitution of the Service Civilian Court

    2. 132. Arraignment before a Standing Civilian Court

    3. 133. Maximum fine for SDA civil offence

    4. 134. Appeal against conviction or sentence by Standing Civilian Court

18. PART 17 SERVICE AND EFFECT OF SENTENCES IN RESPECT OF SDA OFFENCES

    1. CHAPTER 1 General

       1. 135. General saving for SDA sentences

    2. CHAPTER 2 Custodial sentences and detention

       1. 136. Committal orders under NDA 1957: custodial sentences

       2. 137. Committal orders under NDA 1957: sentences of service detention

       3. 138. Commencement of SDA sentence of service detention awarded by CO: sentence not running at commencement

       4. 139. Commencement of SDA sentence of service detention awarded by CO: sentence running at commencement

       5. 140. Commencement of consecutive SDA sentence of service detention awarded by CO before commencement

       6. 141. Commencement of sentence of detention activated by CO under NDA 1957 before commencement

       7. 142. Commencement of SDA sentence of service detention awarded by CO after commencement

       8. 143. Commencement of sentence of detention activated by CO under NDA 1957 after commencement

       9. 144. Commencement of SDA sentence of service detention activated by CO under AFA 2006

       10. 145. Effect of custodial sentence or detention on rank or rate

       11. 146. Service of SDA sentence of service detention

       12. 147. Detention in service custody following passing of custodial sentence etc in respect of SDA offence

       13. 148. Removal to England and Wales following passing of custodial sentence etc in respect of SDA offence

       14. 149. Duty to receive and detain prisoners

       15. 150. Service custody etc rules

       16. 151. Duration of sentences: persons unlawfully at large or on temporary release

       17. 152. Remission of certain sentences on passing of custodial sentence etc

       18. 153. Power of service policeman to arrest person unlawfully at large

       19. 154. Sentences passed by civilian courts

    3. CHAPTER 3 Financial penalties

       1. 155. Effect of appeal on SDA service compensation order, etc

       2. 156. Review of stoppages and SDA compensation order, etc

       3. 157. Power to allow payment of fine or stoppages by instalments

       4. 158. Imprisonment in default of payment of fine

    4. CHAPTER 4 Second class for conduct

       1. 159. Second class for conduct

    5. CHAPTER 5 Restitution orders

       1. 160. Restitution orders

    6. CHAPTER 6 SDA orders for conditional discharge

       1. 161. SDA orders for conditional discharge

       2. 162. Order of court-martial: conviction of further offence by Court Martial

       3. 163. Order of any SDA court: conviction of further offence by Service Civilian Court

       4. 164. Order of Standing Civilian Court: conviction of further offence by Court Martial

       5. 165. Appeals against re-sentence, etc

    7. CHAPTER 7 Community supervision orders

       1. 166. Community supervision orders

       2. 167. Savings in respect of community supervision orders: provisions of SDAs

       3. 168. Offence of failure to comply to be treated as service offence for certain purposes

       4. 169. Community supervision order made by court-martial: conviction of further offence by Court Martial

       5. 170. CSO made by any SDA court: conviction of further offence by Service Civilian Court

       6. 171. CSO made by Standing Civilian Court: conviction of further offence by Court Martial

       7. 172. Restriction on other powers of punishment in respect of failure to comply with order

       8. 173. Appeals against re-sentence, etc

       9. 174. Savings of regulations

    8. CHAPTER 8 Supplementary provisions relating to trial of civilians

       1. 175. Service of documents

19. PART 18 DISCIPLINE: MISCELLANEOUS

    1. 176. Findings and sentences passed by reviewing authority

    2. 177. Testing for alcohol and drugs

    3. 178. Offences in relation to service courts

    4. 179. Witness anonymity orders

    5. 180. Arrest by civilian police under warrant

    6. 181. Arrest by civilian police of deserters etc

    7. 182. Remand by civil court

    8. 183. Arrest of persons unlawfully at large

    9. 184. The Criminal Cases Review Commission

    10. 185. Financial penalty enforcement orders

    11. 186. Evidential burden as respects excuses

    12. 187. Local probation boards

    13. 188. Judge advocates

20. PART 19 ENLISTMENT, TERMS OF SERVICE ETC

    1. 189. Interpretation

    2. 190. Enlistment

    3. 191. Terms and conditions of enlistment and service

    4. 192. Desertion and absence without leave: forfeiture of service etc

    5. 193. Discharge etc from the regular forces and transfer to the reserve forces

    6. 194. Membership of reserve force

    7. 195. Term of compulsory service

    8. 196. Complaints to employment tribunals etc

21. PART 20 FORFEITURES AND DEDUCTIONS

    1. 197. Permitted forfeitures and deductions

    2. 198. Forfeitures and deductions permitted, ordered or authorised before commencement

22. PART 21 MISCELLANEOUS

    1. 199. Offences punishable by civilian courts

    2. 200. Evidence in proceedings before civilian courts

    3. 201. Trial by civil courts of offences committed before commencement

    4. 202. Affidavits and declarations

    5. 203. Protection of children of service families

    6. 204. Service of process

    7. 205. Minor and consequential amendments and repeals

    8. 206. Transitory provisions

23. Signature

24. 1. SCHEDULE 1

       Minor and consequential amendments and repeals

       1. 1. Debts (Deceased Servicemen etc) Act 1893

       2. 2. Criminal Evidence Act 1898

       3. 3. Army and Air Force (Women’s Service) Act 1948

       4. 4. Prison Act 1952

       5. 5. Emergency Laws (Miscellaneous Provisions) Act 1953

       6. 6. Registration of Births, Deaths and Marriages (Special Provisions) Act 1957

       7. 7. Coroners Act (Northern Ireland) 1959

       8. 8. Criminal Justice Act 1961

       9. 9. Parliamentary Commissioner Act 1967

       10. 10. Criminal Justice Act 1967

       11. 11. Civil Evidence Act 1968

       12. 12. Civil Evidence Act (Northern Ireland) 1971

       13. 13. Juries Act 1974

       14. 14. Rehabilitation of Offenders Act 1974

       15. 15. Bail Act 1976

       16. 16. Race Relations Act 1976

       17. 17. Rehabilitation of Offenders (Northern Ireland) Order 1978

       18. 18. Magistrates’ Courts Act 1980

       19. 19. Public Passenger Vehicles Act 1981

       20. 20. Contempt of Court Act 1981

       21. 21. Senior Courts Act 1981

       22. 22. Armed Forces Act 1981

       23. 23. Criminal Justice Act 1982

       24. 24. Representation of the People Act 1983

       25. 25. Mental Health Act 1983

       26. 26. Repatriation of Prisoners Act 1984

       27. 27. Inheritance Tax Act 1984

       28. 28. Police and Criminal Evidence Act 1984

       29. 29. Coroners Act 1988

       30. 30. Road Traffic Act 1988

       31. 31. Police and Criminal Evidence (Northern Ireland) Order 1989

       32. 32. Sexual Offences (Amendment) Act 1992

       33. 33. Criminal Justice and Public Order Act 1994

       34. 34. Goods Vehicles (Licensing of Operators) Act 1995

       35. 35. Criminal Procedure (Scotland) Act 1995

       36. 36. Disability Discrimination Act 1995

       37. 37. Criminal Procedure and Investigations Act 1996

       38. 38. Armed Forces Act 1996

       39. 39. Social Security (Recovery of Benefits) Act 1997

       40. 40. Crime (Sentences) Act 1997

       41. 41. Police Act 1997

       42. 42. Social Security (Recovery of Benefits) (Northern Ireland) Order 1997

       43. 43. Crime and Disorder Act 1998

       44. 44. Youth Justice and Criminal Evidence Act 1999

       45. 45. Powers of Criminal Courts (Sentencing) Act 2000

       46. 46. Freedom of Information Act 2000

       47. 47. Criminal Justice and Court Services Act 2000

       48. 48. International Criminal Court Act 2001

       49. 49. Armed Forces Act 2001

       50. 50. Anti-terrorism, Crime and Security Act 2001

       51. 51. Proceeds of Crime Act 2002

       52. 52. Sexual Offences Act 2003

       53. 53. Criminal Justice Act 2003

       54. 54. Domestic Violence, Crime and Victims Act 2004

       55. 55. Human Tissue Act 2004

       56. 56. Gambling Act 2005

    2. SCHEDULE 2

       Transitory provisions

       1. 1. Definitions

       2. 2. Punishments available to Service Civilian Court

       3. 3. Powers of Crown Court in relation to orders made by Service Civilian Court

       4. 4. Testing for alcohol and drugs

       5. 5. Age at which imprisonment available

       6. 6. Mandatory custody for life

       7. 7. Discretionary custody for life

       8. 8. Custody for life where custodial sentence would have been required by SDAs

       9. 9. Power to impose detention in a young offender institution

       10. 10. Interaction of detention in a young offender institution with detention and training order

       11. 11. Consecutive sentences

       12. 12. Restriction on imposing custodial sentence on unrepresented offender

       13. 13. Crediting of time in service custody

       14. 14. Re-sentencing powers

       15. 15. Sentences passed by civilian courts

       16. 16. Meaning of “custodial sentence”

       17. 17. Notification requirements under Counter-Terrorism Act 2008

       18. 18. The Supreme Court

25. Explanatory Note