Armed Forces Act 2006

Valid from 28/03/2009

Chapter 1 U.K. Custody without Charge

98 Limitations on custody without charge U.K.

(1) Except in accordance with sections 99 to 102, a person arrested under section 67 may not be kept in service custody without being charged with a service offence.

(2) If at any time the commanding officer of a person who is kept in service custody without being charged with a service offence—

(a) becomes aware that the grounds for keeping that person in service custody have ceased to apply, and

(b) is not aware of any other grounds on which continuing to keep that person in service custody could be justified under this Act,

the commanding officer must, subject to subsection (3), order his immediate release from service custody.

(3) A person who appears to his commanding officer to have been unlawfully at large when he was arrested may not be released under subsection (2).

(4) Section 301(4) (cases where persons temporarily released from service detention are unlawfully at large) applies for the purposes of this section.

99 Authorisation by commanding officer of custody without charge U.K.

(1) Where a person is arrested under section 67—

(a) the arrest, and

(b) any grounds on which he is being kept in service custody without being charged with a service offence,

must be reported as soon as practicable to his commanding officer.

(2) Until such a report is made, the person may be kept in service custody without being charged with a service offence, but only if the person who made the arrest has reasonable grounds for believing that keeping him in service custody without being charged is necessary—

(a) to secure or preserve evidence relating to a service offence for which he is under arrest; or

(b) to obtain such evidence by questioning him.

(3) After receiving a report under subsection (1), the commanding officer must as soon as practicable determine—

(a) whether the requirements of subsection (4) are satisfied; and

(b) if so, whether to exercise his powers under that subsection;

and the person to whom the report relates may be kept in service custody for such period as is necessary to enable the commanding officer to make that determination.

(4) If, in relation to the person to whom the report relates, the commanding officer has reasonable grounds for believing—

(a) that keeping him in service custody without being charged with a service offence is necessary to secure or preserve evidence relating to a service offence for which he is under arrest or to obtain such evidence by questioning him, and

(b) that the investigation is being conducted diligently and expeditiously,

he may authorise the keeping of that person in service custody.

(5) Subject to subsection (6), an authorisation under subsection (4) ends not more than 12 hours after it is given.

(6) Except in accordance with section 101 or 102, a person may not be kept in service custody later than 48 hours after the arrest without being charged with a service offence.

(7) Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence—

(a) subsections (1) to (5) apply in relation to the arrest for that other offence;

(b) the reference in subsections (2)(a) and (4)(a) to a service offence for which he is under arrest includes the service offence for which he was originally arrested;

(c) the reference in subsection (6) to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested; and

(d) the last authorisation under subsection (4) (if any) given in relation to him ceases to have effect (and accordingly section 100 ceases to apply in relation to that authorisation).

100 Review of custody by commanding officer U.K.

(1) The commanding officer of a person kept in service custody in accordance with section 99 must, subject to subsections (3) and (4), review the keeping of that person in service custody not later than the end of the period for which it is authorised.

(2) Subsections (4) and (5) of section 99 apply on each review under this section as they apply where a report is received under section 99(1).

(3) A review may be postponed if, having regard to all the circumstances prevailing at the expiry of the last authorisation under section 99(4), it is not practicable to carry out the review at that time.

(4) A review may also be postponed if at the expiry of the last authorisation under section 99(4)—

(a) the person in service custody is being questioned and the commanding officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which the person is being questioned; or

(b) the commanding officer is not readily available.

(5) Subsection (4) does not limit the power to postpone under subsection (3).

(6) If a review is postponed under subsection (3) or (4)—

(a) it must be carried out as soon as practicable after the expiry of the last authorisation under section 99(4); and

(b) the keeping in service custody of the person to whom the review relates is by virtue of this paragraph authorised until that time.

101 Extension by judge advocate of custody without charge U.K.

(1) If, on an application by the commanding officer of a person arrested under section 67, a judge advocate is satisfied that there are reasonable grounds for believing that the continued keeping of that person in service custody is justified, the judge advocate may by order authorise the keeping of that person in service custody.

(2) A judge advocate may not hear an application under this section unless the person to whom it relates—

(a) has been informed in writing of the grounds for the application; and

(b) has been brought before him for the hearing.

(3) The person to whom the application relates is entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented—

(a) the judge advocate must adjourn the hearing to enable him to obtain representation; and

(b) he may be kept in service custody during the adjournment.

(4) The period for which a judge advocate, on an application under this section, may authorise the keeping of a person in service custody is such period, ending not more than 96 hours after the arrest, as he considers appropriate having regard to the evidence before him.

(5) Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence, the reference in subsection (4) to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested.

(6) For the purposes of this section and section 102, the continued keeping of a person in service custody is justified only if—

(a) keeping him in custody without being charged with a service offence is necessary to secure or preserve evidence relating to a service offence for which he is under arrest or to obtain such evidence by questioning him; and

(b) the investigation is being conducted diligently and expeditiously.

102 Further provision about applications under section 101 U.K.

(1) Subject to subsection (2), an application under section 101 may be made—

(a) at any time before the end of 48 hours after the arrest; or

(b) if it is not practicable for the application to be heard before the end of that period, as soon as practicable thereafter but not more than 96 hours after the arrest.

(2) Where subsection (1)(b) applies, an authorisation on a review under section 100 may be for a period ending more than 48 hours after the arrest, but may not be—

(a) for a period of more than six hours; or

(b) for a period ending more than 96 hours after the arrest.

(3) If—

(a) an application under section 101 is made more than 48 hours after the arrest, and

(b) it appears to the judge advocate that it would have been reasonable for the commanding officer to make the application before the end of that period,

the judge advocate must refuse the application.

(4) Where on an application under section 101 relating to any person the judge advocate is not satisfied that there are reasonable grounds for believing that the continued keeping of that person in service custody is justified, he must—

(a) refuse the application; or

(b) adjourn the hearing of it until a time not later than 48 hours after the arrest.

(5) The person to whom the application relates may be kept in service custody during the adjournment.

(6) Where a judge advocate refuses an application under section 101 at any time less than 48 hours after the arrest, he may direct that the person to whom it relates must, without delay, be charged with a service offence or released from service custody.

(7) Where a judge advocate refuses an application under section 101 at any later time, he must direct that the person to whom it relates must, without delay, be charged with a service offence or released from service custody.

(8) Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence, any reference in this section to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested.

103 Custody without charge: other cases U.K.

Sections 98 to 102 apply—

(a) where a person is transferred to or taken into service custody under section 313(4), 315(4), 316(3) or 317(4), and

(b) in any other case where a person arrested by a member of a UK police force or overseas police force is transferred to service custody,

as they apply where a person is arrested under section 67, subject to such modifications as the Secretary of State may by order prescribe.

104 Custody without charge: supplementary U.K.

(1) The Secretary of State may by regulations make provision—

(a) for the delegation by the commanding officer of a person in service custody of any of the commanding officer's functions under sections 98 to 102;

(b) with respect to circumstances in which a person kept in service custody without being charged with a service offence is to be informed of, or given an opportunity to make representations about, any matter;

(c) for the keeping of written records relating to compliance with any requirement of sections 69(3)(a) and 98 to 102 or of regulations under paragraph (b).

(2) Any reference in sections 99 to 102 to a period of time is to be treated as approximate only.