1

The Secretary of State may by order make provision that enables a service policeman, for the purposes of an investigation of a relevant offence and by making an application to a judge advocate in accordance with the order—

a

to obtain access to excluded material or special procedure material on relevant residential premises; or

b

to obtain access to material (other than items subject to legal privilege) on premises other than relevant residential premises.

2

An order under this section (an “enabling order”) may in particular—

a

so far as it relates to obtaining access to material on relevant residential premises, make provision equivalent to any provision of Schedule 1 to PACE (special procedure for obtaining production orders and warrants);

b

so far as it relates to obtaining access to material on premises other than relevant residential premises, make provision equivalent to any provision of paragraphs 1 to 11 of that Schedule (special procedure for obtaining production orders);

c

make provision equivalent to section 311(2) and (3) of this Act (certification to civil court of offences akin to contempt) in relation to a failure by a person within section 309(6) to comply with an order made by a judge advocate under the enabling order;

d

authorise the use, in connection with any application made by virtue of the enabling order, of live television or telephone links or similar arrangements.

2A

Any power under subsection (2) to make provision which is equivalent to another provision includes power to make provision which is equivalent subject to such modifications as the Secretary of State considers appropriate.

4

In this section the following expressions have the meanings given by section 84—

• “excluded material”;

• “items subject to legal privilege”;

• “relevant offence”;

• “special procedure material”.

CHAPTER 3ATesting for alcohol and drugs on suspicion of offence

Preliminary testing for alcohol and drugs

93ACommanding officer's power to require preliminary tests

1

This section applies where the commanding officer of a person subject to service law has reasonable cause to believe that that person—

a

is committing a relevant offence; or

b

has committed a relevant offence and still has alcohol or a drug in the body or is still under the influence of a drug.

2

In this section “relevant offence” means—

a

an offence under section 20A; or

b

an offence under section 20(1)(a) in respect of a safety-critical duty (as defined by section 93I).

3

This section also applies where the commanding officer of a person who is a civilian subject to service discipline has reasonable cause to believe that that person—

a

is committing an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under section 78, 79, 92 or 93 of the Railways and Transport Safety Act 2003 (maritime and aviation offences); or

b

has committed such an offence under section 42 and still has alcohol or a drug in the body or is still under the influence of a drug.

4

The commanding officer may require the person mentioned in subsection (1) or (3) (“the suspected person”) to co-operate with any one or more of—

a

a preliminary breath test (see section 93B);

b

a preliminary impairment test (see section 93C);

c

a preliminary drug test (see section 93D).

5

The Defence Council may by regulations provide for the delegation by a commanding officer of the commanding officer's functions under this section.

6

A person who, without reasonable excuse, fails to comply with a requirement imposed under subsection (4) commits an offence.

7

A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

8

For the purposes of this section, a person does not co-operate with a preliminary test unless the person's co-operation—

a

is sufficient to enable the test to be carried out; and

b

is provided in such a way as to enable the objective of the test to be satisfactorily achieved.

93BPreliminary breath test

1

A preliminary breath test is a procedure administered by a service policeman under which—

a

the suspected person provides a specimen of breath; and

b

the specimen is used for the purpose of obtaining, by means of an approved device, an indication whether the proportion of alcohol in the person's breath or blood is likely to be such as is necessary for the commission of the suspected offence.

2

A preliminary breath test may be administered only—

a

at or near the place where the requirement to co-operate with the test is imposed;

b

at a service police establishment determined by the service policeman; or

c

at a medical establishment.

3

In this section “the suspected offence” means an offence mentioned in section 93A(2) or (3)(a) which the commanding officer has reasonable cause to believe has been committed.

93CPreliminary impairment test

1

A preliminary impairment test is a procedure under which a service policeman—

a

observes the suspected person performing tasks specified by the service policeman; and

b

makes such other observations of the suspected person's physical state as the service policeman thinks expedient.

2

A preliminary impairment test may be administered only—

a

at or near the place where the requirement to co-operate with the test is imposed;

b

at a service police establishment determined by the service policeman; or

c

at a medical establishment.

3

The Provost Marshals (acting jointly) must issue, and may from time to time revise, a code of practice about—

a

the kind of task that may be specified for the purposes of a preliminary impairment test;

b

the kind of observation of physical state that may be made in the course of a preliminary impairment test;

c

the way in which a preliminary impairment test should be administered; and

d

the inferences that may be drawn by a service policeman from observations made in the course of a preliminary impairment test.

4

In subsection (3) “the Provost Marshals” means the Provost Marshals of each of the service police forces.

5

A service policeman administering a preliminary impairment test must have regard to the code of practice.

6

A service policeman may administer a preliminary impairment test only if the service policeman is approved for that purpose by a Provost Marshal of a service police force.

7

A code of practice under this section may include provision about—

a

the giving of approval under subsection (6); and

b

in particular, the kind of training that a service policeman should have undergone, or the kind of qualification that a service policeman should possess, before being approved under that subsection.

93DPreliminary drug test

1

A preliminary drug test is a procedure administered by a service policeman under which—

a

a specimen of sweat or saliva is obtained from the suspected person; and

b

the specimen is used for the purpose of obtaining, by means of an approved device, an indication whether there is a drug in the person's body.

2

A preliminary drug test may be administered only—

a

at or near the place where the requirement to co-operate with the test is imposed;

b

at a service police establishment determined by the service policeman; or

c

at a medical establishment.

Provision of specimens for analysis

93EProvision of specimens for analysis

1

This section applies in relation to an investigation into whether a person has committed—

a

an offence under section 20A;

b

an offence under section 20(1)(a) in respect of a safety-critical duty (as defined by section 93I); or

c

an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under section 78, 79, 92 or 93 of the Railways and Transport Safety Act 2003.

2

In the course of the investigation a service policeman may require the person—

a

to provide two specimens of breath for analysis by means of an approved device;

b

to provide a specimen of blood or urine for a laboratory test.

3

A requirement under this section may be imposed only at a service police establishment or a medical establishment.

4

For the purposes of this section and section 93F, a person does not provide a specimen of breath for analysis unless the specimen—

a

is sufficient to enable the analysis to be carried out; and

b

is provided in such a way as to enable the objective of the analysis to be satisfactorily achieved.

5

For the purposes of this section and section 93F, a person provides a specimen of blood if and only if—

a

he consents to the taking of such a specimen from him;

b

the specimen is taken from him by a registered medical practitioner or registered nurse; and

c

the specimen is of sufficient quantity to enable it to be divided into two parts for the purposes of analysis.

6

For the purposes of this section and section 93F, a person provides a specimen of urine if and only if the specimen—

a

is provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine; and

b

is of sufficient quantity to enable it to be divided into two parts for the purposes of analysis.

7

Where the provision of a specimen may be required under this section, the question of whether it is to be breath, blood or urine, and in the case of blood the question of who is to be asked to take it, is to be decided by the service policeman imposing the requirement.

8

But where a service policeman decides for the purposes of subsection (7) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if—

a

the registered medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or

b

the registered nurse who is asked to take it is of that opinion and there is no contrary opinion from a registered medical practitioner;

and where by virtue of this subsection there can be no requirement to provide a specimen of blood, the service policeman may require a specimen of urine instead.

9

A service policeman must, on requiring a person to provide a specimen in pursuance of this section, warn the person that a failure to provide it may render the person liable to proceedings for a service offence.

10

A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.

11

A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

93FFurther provision about specimens under section 93E

1

Where two specimens of breath are provided by a person in pursuance of section 93E, the one with the lower proportion of alcohol in the breath is to be used and the other is to be disregarded.

2

If the specimen with the lower proportion of alcohol contains no more than a prescribed proportion of alcohol, the person who provided it may claim that it should be replaced by such a specimen of blood or urine as may be required under section 93E.

3

If the person then provides such a specimen, neither specimen of breath is to be used.

4

In subsection (2) “prescribed” means prescribed by regulations made by the Defence Council for the purposes of this section; and the regulations may prescribe different proportions of alcohol in relation to different kinds of offence.

5

On a request made at the time a specimen of blood or urine is provided under section 93E, the person who provided the specimen must be given a part of the specimen sufficient for the purposes of analysis.

93GSpecimens of blood from persons incapable of consenting

1

A service policeman may request a registered medical practitioner to take a specimen of blood from a person (“the person concerned”), irrespective of whether that person consents, if—

a

the service policeman would (in the absence of any incapacity of the person concerned and of any objection under section 93H) be entitled under section 93E to require the person concerned to provide a specimen of blood for a laboratory test;

b

it appears to the service policeman that the person concerned has been involved in an accident that constitutes or is comprised in the matter that is under investigation or the circumstances of that matter;

c

it appears to the service policeman that the person concerned is or may be incapable of giving a valid consent to the taking of a specimen of blood (whether or not consent has purportedly been given); and

d

it appears to the service policeman that that person's incapacity is attributable to medical reasons.

2

It is lawful for a registered medical practitioner to whom a request is made under this section, if that practitioner thinks fit—

a

to take a specimen of blood from the person concerned irrespective of whether that person consents; and

b

to provide the specimen to a service policeman.

3

The specimen must be of sufficient quantity to enable it to be divided into two parts for the purposes of analysis.

4

If a specimen is taken in pursuance of a request under this section, it must not be subjected to a laboratory test unless the person concerned—

a

has been informed that it was taken;

b

has been required by a service policeman to give permission for a laboratory test of the specimen; and

c

has given permission.

5

A service policeman, on requiring a person to give permission for the purposes of this section for a laboratory test of a specimen, must warn the person that a failure to give the permission may render the person liable to proceedings for a service offence.

6

On a request made at the time a person gives permission under this section for a laboratory test of a specimen, that person must be given a part of the specimen sufficient for the purposes of analysis.

7

A person who, without reasonable excuse, fails to give permission for a laboratory test of a specimen taken from the person under this section is guilty of an offence.

8

A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

General provisions relating to testing

93HPatients in medical establishments

1

This section applies in relation to a person who is at a medical establishment as a patient.

2

The person shall not be required to co-operate with a preliminary test or to provide a specimen under section 93E unless the responsible medical professional has been notified of the proposal to impose the requirement.

3

If the responsible medical professional objects on medical grounds the requirement must not be imposed.

4

If the responsible medical professional does not object on medical grounds and the requirement is imposed, the requirement must be for co-operation with a preliminary test administered, or for the provision of a specimen, at the medical establishment.

5

No specimen of blood may be taken from the person under section 93G, and the person may not be required to give permission for a laboratory test of a specimen taken under that section, unless the responsible medical professional—

a

has been notified of the proposal that the specimen be taken or of the proposal to make the requirement; and

b

has not objected on medical grounds.

6

In this section “the responsible medical professional” means—

a

the registered medical practitioner in immediate charge of the person's case; or

b

if there is no such registered medical practitioner, the registered nurse in immediate charge of the person's case.

7

In this section “medical grounds” means—

a

in relation to a requirement to co-operate with a preliminary test or to provide a specimen under section 93E, the ground that the requirement, or compliance with it by the patient, or any warning required by section 93E(9), would be prejudicial to the proper care and treatment of the patient;

b

in relation to the taking of a specimen under section 93G or a requirement to give permission for a laboratory test of a specimen taken under that section, the ground that the taking of the specimen, the requirement, or any warning required by section 93G(5), would be so prejudicial.

93IDefinitions for purposes of Chapter 3A

1

In this Chapter—

• “approved”, in relation to a device, means approved by the Secretary of State;

• “drug” includes any intoxicant other than alcohol;

• “medical establishment” means any facility at which medical or surgical treatment for in- or out-patients is provided;

• “preliminary test” means—

  1. a

     a preliminary breath test within the meaning of section 93B;

  2. b

     a preliminary impairment test within the meaning of section 93C; or

  3. c

     a preliminary drug test within the meaning of section 93D;

• “safety-critical duty” means a duty which the commanding officer of the person mentioned in section 93A(1) or 93E(1) reasonably believes is such that performing the duty with ability impaired by alcohol or drugs would result in a risk of—

  1. a

     death;

  2. b

     serious injury to any person;

  3. c

     serious damage to property; or

  4. d

     serious environmental harm;

• “service police establishment” means any building or part of a building, any structure, or any room (whether on land or on a ship) which is used by a service policeman for the performance of his duties.

2

In this Chapter any reference to a service policeman includes a Royal Navy coxswain.

3

Where the person being punished is a corporal in any of Her Majesty's air forces, the reduction in rank authorised by subsection (2)(a) or (b) (as the case may be) is reduction to the highest rank the person has held in that force as an airman; but this is subject to subsection (3A).

3A

In relation to the Royal Air Force Regiment, the reference in subsection (3) to a corporal is to be read as a reference to a lance corporal.

2

If he awards detention, the only additional punishments he may award are—

a

reduction in rank or disrating (subject to subsection (8));

b

a service compensation order.

165Sentencing powers of Court Martial where election for trial by that court instead of CO

Schedule 3A (sentencing powers of Court Martial where election for trial by that court instead of CO) has effect.

269AFines: fixing of term of imprisonment for default

1

Where the Court Martial imposes a fine on a person aged 18 or over, the court must make an order fixing a term of imprisonment which the person is to undergo if—

a

any sum which the person is liable to pay is not duly paid or recovered; and

b

an enforcement order is made.

2

The Table in section 139(4) of the Sentencing Act (maximum periods of imprisonment for default), as for the time being in force, applies for the purpose of determining the maximum periods of imprisonment that may be fixed under this section for fines of the amounts set out in that Table.

3

Where the person mentioned in subsection (1) is sentenced by the court to, or is serving or otherwise liable to serve, a term of—

a

imprisonment,

b

detention in a young offender institution, or

c

detention under section 108 of the Sentencing Act (detention of persons aged 18 to 21 for default or contempt),

the court may order that any term of imprisonment fixed under subsection (1) shall not begin to run until after the end of that other term.

4

For the purposes of references in subsection (3) to a term of imprisonment or detention which a person has been sentenced to or is serving or liable to serve, consecutive terms and terms which are wholly or partly concurrent are to be treated as a single term.

5

References in subsection (3) to a term which a person is serving or liable to serve are to a term imposed—

a

by a relevant service court; or

b

by a civilian court in any part of the United Kingdom.

6

In this section—

• “enforcement order” means an order under regulations made under section 322 (orders for enforcement by prescribed courts of fines etc);

• “relevant service court” means the Court Martial, the Service Civilian Court, the Court Martial Appeal Court or the Supreme Court on an appeal brought from the Court Martial Appeal Court.

269BService compensation orders: power to set maximum term of imprisonment for default

1

This section applies where—

a

the Court Martial makes a service compensation order and the person by whom the compensation is payable is aged 18 or over; and

b

the court thinks that the usual default term is insufficient.

2

In subsection (1) “the usual default term” means the period for which the person would be liable to be committed to prison for default if—

a

an enforcement order were made; and

b

by virtue of that order, the amount payable under the service compensation order were treated as if it had been a fine imposed on a conviction by a magistrates' court in England and Wales.

3

Where this section applies, the court may specify a longer period as the maximum term to which the person is liable to be committed to prison for default if an enforcement order is made.

4

The Table in section 139(4) of the Sentencing Act (maximum periods of imprisonment for default), as for the time being in force, applies for the purpose of determining the maximum periods of imprisonment that may be specified under this section for service compensation orders of the amounts set out in that Table.

5

In this section “enforcement order” has the same meaning as in section 269A.

269COrders under section 269A or 269B against service parents or service guardians: appeals

1

This section applies where—

a

the Court Martial makes an order under section 268 in respect of a fine or service compensation order (fine or compensation to be paid by service parent or service guardian); and

b

the court also makes an order under section 269A or 269B (“a default term order”) in respect of the parent or guardian (“P”).

2

For the purposes of the Court Martial Appeals Act 1968—

a

the default term order is to be treated as a sentence passed on P for the offence in respect of which the fine or service compensation order was imposed; and

b

P is to be treated, for the purpose of enabling P to appeal against the default term order, as if P had been convicted of the offence by the Court Martial.

3

For the purposes of any appeal against the default term order, references in section 16A of the Court Martial Appeals Act 1968 to passing a sentence include making an order.

4

On an appeal against the default term order, the Court Martial Appeal Court may (as an alternative to exercising its powers under section 16A(2) of that Act) quash the order; but this is subject to subsection (5).

5

If the default term order was made under section 269A, the power under subsection (4) may only be exercised if the court also quashes the order under section 268.

aa

about the effect, where a sum is certified in such an order, of an order made by the Court Martial under—

i

section 269A (fines: fixing of term of imprisonment for default); or

ii

section 269B (service compensation order: maximum term of imprisonment for default);

1

The rank or rate of a warrant officer or non-commissioned officer may be reduced only by an order made by that person's commanding officer.

2

An order of a commanding officer reducing the rank or rate of a warrant officer or non-commissioned officer (“an order reducing rank or rate”)—

a

may not be made without the permission of higher authority (but this is subject to subsection (3));

b

may not reduce the rank of a person in any of Her Majesty's air forces below the highest rank that person has held in that force as an airman.

3

The permission of higher authority is not required for an order reducing rank or rate if—

a

the person whose rank is to be reduced is a lance corporal or lance bombardier; or

b

the commanding officer making the order is of or above the rank of rear admiral, major-general or air vice-marshal.

c

either—

i

he is in a designated area, and his normal place of work in that role is in that designated area; or

ii

sub-paragraph (i) does not apply, but he is in a designated area and he came there wholly or partly for the purposes of his work in that role.

c

either—

i

he is in a country outside the British Islands, and his normal place of work under that employment is in that country; or

ii

sub-paragraph (i) does not apply, but he is in a country outside the British Islands and he came there wholly or partly for the purposes of his work under that employment.

b

either—

i

he is in a designated area, and his normal place of work for that organisation is in that designated area; or

ii

sub-paragraph (i) does not apply, but he is in a designated area and he came there wholly or partly for the purposes of work for that organisation.

14

For the purposes of paragraphs 5(1)(c), 10 and 11, a territory that is not within a country is to be treated as a country.

Protected prisoners of war

371APower to make provision in relation to protected prisoners of war

1

Her Majesty may by warrant make provision with respect to protected prisoners of war.

2

A Royal Warrant made under this section may in particular make provision in relation to protected prisoners of war which—

a

applies any relevant provision, or

b

is equivalent to that made by any relevant provision,

subject to such modifications as may be contained in the Royal Warrant.

3

In subsection (2) “relevant provision” means any provision of or made under this Act (including any provision creating a service offence), other than any provision of or made under Part 14, 15 or 16.

4

The Secretary of State must publish a Royal Warrant made under this section in such a way as appears to the Secretary of State to be appropriate.

5

Section 373(5) (power to make supplementary provision etc) applies in relation to Royal Warrants under this section.

6

In this section “protected prisoner of war” means a person—

a

who is a protected prisoner of war within the meaning given by section 7 of the Geneva Conventions Act 1957; and

b

as respects whom the United Kingdom is the detaining power for the purposes of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (set out in the Third Schedule to that Act).