Naval Discipline Act 1957 (repealed)

Textual Amendments applied to the whole legislation

F459 Act repealed (prosp.) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 17 and the repeal being partly in force, as to which see individual provisions

Part IF459 U.K. Articles of war

Modifications etc. (not altering text)

C1 Pt. I (ss. 1-44) applied (1.6.1996) by Armed Forces Act 1991 (c. 62), ss. 18(9)(c), 20(10)(c), 27(2); S.I. 1996/1173, art. 2

Public worshipF459 U.K.

1 Public worship to be performed. U.K.

All officers in command of Her Majesty’s ships shall cause public worship of Almighty God to be solemnly, orderly and reverently performed in their respective ships, and shall take care that prayers and preaching, by the chaplains of those ships, be performed diligently and that the Lord’s Day be observed.

Misconduct in action and other offences arising out of naval serviceF459 U.K.

[F1 2 Misconduct in action. U.K.

(1) A person subject to this Act shall be guilty of an offence against this section if, without lawful excuse, he—

(a) surrenders any place or thing to the enemy, or

(b) abandons any place or thing which it is his duty to defend against the enemy or to prevent from falling into the hands of the enemy.

(2) A person subject to this Act shall be guilty of an offence against this section if, being in the presence or vicinity of the enemy, or being engaged in any action or operation against the enemy or under orders to be prepared for any action or operation by or against the enemy, he—

(a) fails to use his utmost exertions to carry the lawful orders of his superior officers into execution, or

(b) while on guard duty and posted or ordered to patrol, or while on watch, sleeps or, without having been regularly relieved, leaves any place where it is his duty to be, or

(c) behaves in such a manner as to show cowardice, or induces any other person so to behave at a time when that other person, being a member of Her Majesty’s forces or of a force co-operating with Her Majesty’s forces, is in the presence or vicinity of the enemy, or is engaged in any action or operation against the enemy or under orders to be prepared for any action or operation by or against the enemy, or

(d) uses words likely to cause despondency or unnecessary alarm.

(3) A person guilty of an offence against this section shall be liable—

(a) if the offence consisted in an act or omission falling within subsection (1) or paragraph (a) of subsection (2) and was committed with intent to assist the enemy, to suffer death or any less punishment authorised by this Act;

(b) in any other case, to imprisonment or any less punishment authorised by this Act.]

Textual Amendments

F1 Ss. 2-4 substituted for ss. 2-5 by Armed Forces Act 1971 (c. 33), ss. 2(1)(3), 78(4)

3 Assisting the enemy. U.K.

(1) A person subject to this Act shall be guilty of an offence against this section if, knowingly and without lawful excuse, he—

(a) communicates with, or gives intelligence to, the enemy, or

(b) fails to make known to the proper authorities any information received by him from the enemy, or

(c) furnishes the enemy with supplies of any description, or

(d) having been captured by the enemy, serves with or aids the enemy in the prosecution of hostilities or of measures likely to influence morale, or in any other manner whatsoever not authorised by international usage, or

(e) having been captured by the enemy, fails to take, or prevents or discourages any other person subject to service law who has been captured by the enemy from taking, any reasonable steps to rejoin Her Majesty’s service which are available to him or, as the case may be, to that other person, or

(f) harbours or protects an enemy not being a prisoner of war.

(2) A person guilty of an offence against this section shall be liable—

(a) if the offence consisted in an act or omission falling within paragraph (a), (b), (c), (d) or (f) of subsection (1) and was committed with intent to assist the enemy, to suffer death or any less punishment authorised by this Act,

(b) in any other case, to imprisonment or any less punishment authorised by this Act.

4 Obstructing operations, giving false air signals, etc. U.K.

(1) A person subject to this Act shall be guilty of an offence against this section if he does any act likely to imperil the success of any action or operation on the part of any of Her Majesty’s forces, or wilfully delays or discourages upon any pretext whatsoever any such action or operation.

(2) A person subject to this Act shall be guilty of an offence against this section if, knowingly and without lawful excuse, he gives any false air signal, or alters or interferes with any air signal or any apparatus for giving an air signal.

(3) A person guilty of an offence against this section shall be liable—

(a) if the offence was committed with intent to assist the enemy, to suffer death or any less punishment authorised by this Act;

(b) in any other case, to imprisonment or any less punishment authorised by this Act.

[F2 5 Looting. U.K.

Any person subject to this Act who—

(a) steals from, or with intent to steal searches, the person of anyone killed, wounded or captured in the course of warlike operations, or killed, injured or detained in the course of operations undertaken by Her Majesty’s forces for the preservation of law and order or otherwise in aid of the civil authorities, or

(b) steals any property which has been left exposed or unprotected in consequence of any such operations as are mentioned in paragraph (a) above, or

(c) takes otherwise than for the public service any vehicle, equipment or stores abandoned by the enemy,

shall be guilty of looting and liable to imprisonment or any less punishment authorised by this Act.]

Textual Amendments

F2 S. 5 inserted by Armed Forces Act 1971 (c. 33), ss. 6(2), 78(4)

Modifications etc. (not altering text)

C2 S. 5 extended (E.W.) (S.) by Rehabilitation of Offender's Act 1974 (c. 53), s. 2(3)(b)

[F3 6 Offences by or in relation to sentries, persons on watch etc. U.K.

Any person subject to this Act who—

(a) while on guard duty and posted or ordered to patrol, or on watch, or under orders to regulate traffic by land, water or air, sleeps or, without having been regularly relieved, leaves any place where it is his duty to be, or

(b) . . . F4 uses force against a member of Her Majesty’s forces, or of any forces co-operating therewith, who is on guard duty and posted or ordered to patrol, or on watch, or under orders to regulate traffic by land, water or air, or

(c) by the threat of force compels any such person as is mentioned in paragraph (b) above to let him or any other person pass,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Textual Amendments

F3 S. 6 substituted by Armed Forces Act 1971 (c. 33), ss. 4(1)(3), 78(4)

F4 Words repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), ss. 4(1), 16(2), Sch. 2

[F5 7 Failure to attend for duty, neglect of duty etc. U.K.

Any person subject to this Act who—

(a) without reasonable excuse fails to attend for any duty of any description, or leaves any such duty before he is permitted to do so, or

(b) neglects to perform, or negligently performs, any duty of any description,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Textual Amendments

F5 S. 7 substituted by Armed Forces Act 1971 (c. 33), ss. 5(1)(3), 78(4)

MutinyF459 U.K.

8 Definition of “mutiny”. U.K.

In this Act “mutiny” means a combination between two or more persons subject to service law, or between persons two at least of whom are subject to service law,—

(a) to overthrow or resist lawful authority in Her Majesty’s forces or any forces co-operating therewith, or in any part of any of the said forces;

(b) to disobey such authority in such circumstances as to make the disobedience subversive of discipline, or with the object of avoiding any duty or service against, or in connection with operations against, the enemy; or

(c) to impede the performance of any duty or service in Her Majesty’s forces or in any forces co-operating therewith, or in any part of any of the said forces;

and “service law” means this Act, military law or air force law.

9 Offences of mutiny. U.K.

(1) Every person subject to this Act who takes part in a mutiny which—

(a) . . . F6

(b) has as its object or one of its objects the refusal or avoidance of any duty or service against, or in connection with operations against, the enemy, or the impeding of the performance of any such duty or service,

or who incites any other person subject to service law to take part in such a mutiny, whether actual or intended, shall be liable to death or any less punishment authorised by this Act.

(2) Every person subject to this Act who takes part in a mutiny not described in the foregoing subsection, or incites any other person subject to service law to take part in such a mutiny, whether actual or intended, shall be liable to imprisonment . . . F7 or any less punishment authorised by this Act.

Textual Amendments

F6 S. 9(1)(a) repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F7 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

10 Failure to suppress mutiny. U.K.

Every person subject to this Act who, knowing that a mutiny is taking place or is intended,—

(a) fails to use his utmost endeavours to suppress or prevent it; or

(b) fails to report without delay that the mutiny is taking place or is intended,

shall be liable, if the offence is committed with intent to assist the enemy, to death or any less punishment authorised by this Act, and in any other case, to imprisonment . . . F8 or any less punishment so authorised.

Textual Amendments

F8 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

Insubordination and similar offencesF459 U.K.

[F9 11 Insubordinate behaviour. U.K.

Every person subject to this Act who—

(a) . . . F10 uses violence to, or offers violence to, his superior officer, or

(b) uses threatening or insubordinate language to, or behaves with contempt to, his superior officer,

shall be liable to imprisonment or any less punishment authorised by this Act:

Provided that it shall be a defence for any person charged under this section, to prove that he neither knew nor had reasonable cause to believe that the person in relation to whom the offence is alleged to have been committed was his superior officer.]

Textual Amendments

F9 Ss. 11, 12 substituted by Armed Forces Act 1971 (c. 33), ss. 8(3), 78(4)

F10 Words repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), ss. 4(1), 16(2), Sch. 2

12 Disobedience to lawful commands. U.K.

Any person subject to this Act who, whether wilfully or through neglect, disobeys any lawful command (by whatever means communicated to him) shall be liable to imprisonment or any less punishment authorised by this Act.

[F11 12A Failure to provide a sample for drug testing. U.K.

(1) Any person subject to this Act who, when requested to do so by a drug testing officer, fails to provide a sample of his urine for testing for the presence of drugs shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.

(2) For the purposes of this section—

• “drug” means any drug which is a controlled drug for the purposes of the Misuse of Drugs Act 1971; and

• “drug testing officer” means an officer, warrant officer or non-commissioned officer who is authorised by or in accordance with Queen’s Regulations for the purpose of supervising the conduct of tests for the presence of drugs.]

Textual Amendments

F11 S. 12A inserted (1.10.1996 with savings) by 1996 c. 46, s. 32(3); S.I. 1996/2474, art. 2 (with art. 3)

Valid from 03/02/2006

[F12 12B Failure to provide sample after serious incident U.K.

Any person subject to this Act who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.]

Textual Amendments

F12 S. 12B inserted (3.2.2006) by 2001 c. 19, ss. 32(9), 39(2), Sch. 5 para. 6; S.I. 2006/235, art. 2 (with art. 3)

13 Fighting and quarrelling. U.K.

Every person subject to this Act who [F13 without reasonable excuse]—

(a) fights . . . F14 with any other person, whether subject to this Act or not; or

(b) uses threatening, abusive, insulting or provocative words or behaviour likely to cause a disturbance,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

Textual Amendments

F13 Words inserted by Armed Forces Act 1971 (c. 33), ss. 16(3), 78(4)

F14 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

14 Obstruction of provost officers. U.K.

Every person subject to this Act who . . . F15 obstructs, or . . . F15 refuses, when called on, to assist, any provost officer, or any person (whether subject to this Act or not) legally exercising authority under or on behalf of a provost officer, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act:

[F16 Provided that it shall be a defence for any person charged under this section to prove that he neither knew nor had reasonable cause to believe that the person in relation to whom the offence is alleged to have been committed was a provost officer or, as the case may be, a person legally exercising authority under or on behalf of a provost officer.]

Textual Amendments

F15 Word repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F16 Proviso inserted by Armed Forces Act 1971 (c. 33), ss. 9(1)(b)(2), 78(4)

[F17 14A Disobedience to standing orders. U.K.

(1) Every person subject to this Act who contravenes or fails to comply with any provision of orders to which this section applies, being a provision known to him or which he might reasonably be expected to know, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2) This section applies to standing orders or other routine orders of a continuing nature made for any formation or unit or body of Her Majesty’s forces, or for any command or other area, garrison or place, or for any ship, vessel, train or aircraft.]

Textual Amendments

F17 S. 14A inserted by Armed Forces Act 1971 (c. 33), ss. 10(3), 78(4)

Desertion and absence without leaveF459 U.K.

[F18 15 Definition of “desertion”. U.K.

A person is guilty of desertion within the meaning of this Act if he—

(a) leaves or fails to attend at his unit, ship or place of duty with the intention of remaining permanently absent from duty without lawful authority, or, having left or failed to attend at his unit, ship or place of duty, thereafter forms the like intention, or

(b) absents himself without leave with intent to avoid serving at any place overseas, or to avoid service or any particular service when before the enemy.]

Textual Amendments

F18 S. 15 substituted by Armed Forces Act 1971 (c. 33), ss. 11(3), 78(4)

16 Offences of desertion. U.K.

(1) Every person subject to this Act who deserts shall be liable to imprisonment . . . F19 or any less punishment authorised by this Act.

(2) A person convicted of desertion shall, except so far as the court or officer by whom he is tried or [F20 the Defence Council] may otherwise direct, forfeit all pay, bounty, salvage and allowances earned by him, all annuities, pensions and gratuities granted to him, and all clothes and effects left by him on board his ship or at his place of duty.

(3) . . . F21

Textual Amendments

F19 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F20 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F21 Ss. 16(3), 17(2), 26 repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

17 Absence without leave etc. U.K.

(1) Every person subject to this Act who, . . . F22 ,—

(a) absents himself without leave; or

(b) improperly leaves his ship . . . F22 ,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act, and to such other punishment by way of forfeiture of pay or other benefits as may be prescribed by regulations made by [F23 the Defence Council.]

(2) . . . F24

Textual Amendments

F22 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F23 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F24 Ss. 16(3), 17(2), 26 repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

18 Failure to report deserters and absentees. U.K.

Every person subject to this Act who, knowing that any other person subject thereto [F25 has committed an offence, or is attempting to commit an offence, under section 16(1) or section 17(1) of this Act],—

(a) fails to report the fact without delay; or

(b) fails to take any steps within his power to cause that person to be apprehended,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

Textual Amendments

F25 Words substituted by Armed Forces Act 1971 (c. 33), ss. 13(3), 78(4)

Navigation and flying offencesF459 U.K.

19 Loss or hazarding of ship or aircraft. U.K.

Every person subject to this Act who, either wilfully or by negligence—

(a) causes or allows to be lost, stranded or hazarded any of Her Majesty’s ships or vessels; . . . F26

(b) . . . F27

shall be liable, if he acts wilfully or with wilful neglect, to imprisonment . . . F28 or any less punishment authorised by this Act, and in any other case to imprisonment for a term not exceeding two years or any less punishment so authorised.

Textual Amendments

F26 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F27 S. 19(b) repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F28 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

20 Dangerous flying, etc. U.K.

Every person subject to this Act who is guilty of any act or neglect in flying, or in the use of any aircraft, or in relation to any aircraft or aircraft material, which causes or is likely to cause loss of life or bodily injury to any person shall be liable—

(a) if he acts wilfully or with wilful neglect, to imprisonment . . . F29 or any less punishment authorised by this Act;

(b) in any other case, to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

Textual Amendments

F29 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

21 Low flying. U.K.

Every person subject to this Act who, being the pilot of one of Her Majesty’s aircraft, flies it at a height less than such height as may be provided by any regulations issued under the authority of [F30 the Defence Council], . . . F31 , except—

(a) while taking off or alighting; or

(b) in such other circumstances as may be so provided,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

[F32 Provided that where a pilot flies an aircraft in contravention of this section on the orders of some other person who is in command of the aircraft, that other person shall be treated for the purposes of this section as having been the pilot of, and flying, the aircraft at the material time.]

Textual Amendments

F30 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F31 Words repealed by S.I. 1964/488, Sch. 1 Pt. I

F32 Proviso inserted by Armed Forces Act 1971 (c. 33), ss. 21(1), 78(4)

22 Annoyance by flying. U.K.

Every person subject to this Act who, being the pilot of one of Her Majesty’s aircraft, flies it so as to cause, or to be likely to cause, unnecessary annoyance to any person shall be liable to dismissal from Her Majesty’s Service or any less punishment authorised by this Act.

[F33 Provided that where a pilot flies an aircraft in contravention of this section on the orders of some other person who is in command of the aircraft, that other person shall be treated for the purposes of this section as having been the pilot of, and flying, the aircraft at the material time.]

Textual Amendments

F33 Proviso inserted by Armed Forces Act 1971 (c. 33), ss. 21(1), 78(4)

Prize offencesF459 U.K.

23 Prize offences by commanding officers. U.K.

Every person subject to this Act who, being in command of any of Her Majesty’s ships, vessels or aircraft,—

(a) having taken any ship, vessel or aircraft as prize, fails to send to the High Court, or to some other prize court having jurisdiction in the case, all the ship papers or aircraft papers, as the case may be, found on board;

(b) unlawfully makes any agreement for the ransoming of any ship, vessel, aircraft or goods taken as prize; or

(c) in pursuance of any such agreement as aforesaid, or otherwise by collusion, restores or abandons any ship, vessel, aircraft or goods taken as prize,

shall be liable to [F34 imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

Textual Amendments

F34 Words substituted by Armed Forces Act 1971 (c. 33), ss. 3(3), 78(4)

24 Other prize offences. U.K.

Every person subject to this Act who—

(a) . . . F35 ill-treats any person who is on board a ship, vessel or aircraft when taken as prize, or unlawfully takes from any such person anything in his possession;

(b) removes out of any ship, vessel or aircraft taken as prize (otherwise than for safe keeping or for the necessary use and service of any of Her Majesty’s forces [F36 or any forces co-operating therewith]) any goods not previously adjudged by a prize court to be lawful prize; or

(c) breaks bulk on board any ship, vessel or aircraft taken as prize, or detained in exercise of any belligerent right or under any enactment, with intent to [F37 steal] anything therein,

shall be liable to [F38 imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

Textual Amendments

F35 Words repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), ss. 4(1), 16(2), Sch. 2

F36 Words inserted by Armed Forces Act 1966 (c. 45), Sch. 4

F37 Word substituted by Armed Forces Act 1981 (c. 55), s. 15 except as to an offence alleged to have been committed before 1.5.1982

F38 Words substituted by Armed Forces Act 1971 (c. 33), ss. 3(3), 78(4)

Other offences in respect of ships and aircraftF459 U.K.

25 Inaccurate certification. U.K.

Every person subject to this Act who makes or signs, without having ensured its accuracy,—

(a) a certificate relating to any matter affecting the seagoing or fighting efficiency of any of Her Majesty’s ships or vessels; or

(b) any certificate relating to any of Her Majesty’s aircraft or aircraft material,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F39 U.K.

Textual Amendments

F39 Ss. 16(3), 17(2), 26 repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

Malingering and drunkennessF459 U.K.

27 Malingering. U.K.

(1) A person is guilty of malingering within the meaning of this section if he falsely pretends to be suffering from sickness or disability, if he injures himself with intent thereby to render himself unfit for service, or causes himself to be injured by any person with that intent, [F40 if he injures another person subject to service law at the instance of that other person and with intent thereby to render that other person unfit for service] or if, with intent to render or keep himself unfit for service, he does or fails to do anything (whether at the time of the act or omission he is in hospital or not) whereby he produces, or prolongs or aggravates, any sickness or disability; and for the purposes of this subsection the expression “unfit” includes temporarily unfit.

(2) Every person subject to this Act who malingers shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

Textual Amendments

F40 Words inserted by Armed Forces Act 1971 (c. 33), ss. 14, 78(4)

28 Drunkenness. U.K.

(1) A person is drunk within the meaning of this section if owing to the influence of alcohol or any drug, whether alone or in combination with any other circumstances, he is unfit to be entrusted with his duty or with any duty which he might [F41 reasonably expect to] be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.

(2) Every person subject to this Act who is drunk, whether on duty or not, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

Textual Amendments

F41 Words inserted by Armed Forces Act 1971 (c. 33), ss. 15(2), 78(4)

Offences relating to propertyF459 U.K.

[F42 29 Damage to, and loss of, public or service property etc. U.K.

(1) Any person subject to this Act who—

(a) wilfully damages or causes the loss of, or is concerned in the wilful damage or loss of, any public or service property, or any property belonging to another person so subject, or

(b) by wilful neglect causes or allows damage to, or the loss of, any public or service property or property so belonging,

shall be liable to imprisonment or any less punishment authorised by this Act.

(2) Any person subject to this Act who—

(a) by any negligent act or omission causes or allows damage to, or the loss of, any public or service property, or

(b) is guilty of any wilful or negligent act or omission which is likely to cause damage to, or the loss of, any such property,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Textual Amendments

F42 Ss. 29, 29A, 30 substituted for ss. 29, 30 by Armed Forces Act 1971 (c. 33), ss. 17(1)(3), 78(4)

29A Damage to, and loss of, Her Majesty’s aircraft or aircraft material. U.K.

(1) Without prejudice to the generality of section 29 above, a person subject to this Act shall be guilty of an offence against this section if he—

(a) wilfully damages or causes the loss of, or is concerned in the wilful damage or loss of, any of Her Majesty’s aircraft or aircraft material, or

(b) by wilful neglect causes or allows damage to, or the loss of, any of Her Majesty’s aircraft or aircraft material, or

(c) without lawful authority disposes of any of Her Majesty’s aircraft or aircraft material, or

(d) by any negligent act or omission causes or allows damage to, or the loss of, any of Her Majesty’s aircraft or aircraft material, or

(e) is guilty of any wilful or negligent act or omission which is likely to cause damage to, or the loss of, any of Her Majesty’s aircraft or aircraft material, or

(f) during a state of war, wilfully and without proper occasion, or negligently, causes the sequestration by or under the authority of a neutral state, or the destruction in a neutral state, of any of Her Majesty’s aircraft.

(2) A person guilty of an offence against this section shall be liable—

(a) if his offence consisted in an act or omission falling within paragraph (a), (b) or (c) of subsection (1), or if it consisted in an act or omission falling within paragraph (f) of that subsection and it is proved that he acted wilfully or with wilful neglect, to imprisonment or any less punishment authorised by this Act;

(b) in any other case, to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

[F43 29B Interference etc. with equipment, messages or signals. U.K.

(1) Any person subject to this Act who by any conduct of his—

(a) intentionally impairs the efficiency or effectiveness of any equipment which is public or service property; or

(b) intentionally interferes with or modifies any message or other signal which is being transmitted, by means of a telecommunication system, directly or indirectly to or from any such equipment,

shall be liable to imprisonment or any less punishment authorised by this Act.

(2) Any person subject to this Act who is guilty of any conduct which is likely to have the effect—

(a) of impairing the efficiency or effectiveness of any such equipment; or

(b) of interfering with or modifying any such message or signal,

shall (whether or not that conduct has that effect) be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(3) It shall be a defence for a person charged with an offence under subsection (2) of this section in respect of any conduct likely to have a particular effect that, in the circumstances, his conduct was in all respects consistent with the exercise of reasonable care to avoid producing that effect.

(4) For the purposes of this section the efficiency or effectiveness of any equipment is impaired if, whether or not it is damaged, the equipment is made temporarily or permanently less efficient or effective either for all purposes or for a particular purpose for which it has been designed, adapted, adjusted or programmed.

(5) in this section—

• “conduct” includes any act or omission;

• “equipment” includes any apparatus, any computer and any vessel, aircraft or vehicle; and

• “telecommunication system” has the same meaning as in the Telecommunications Act M1 1984.]

Textual Amendments

F43 S. 29B inserted by Armed Forces Act 1986 (c. 21, SIF 7:1),s. 2(1)(2)

Marginal Citations

M1 1984 c.12(96).

30 Misapplication and waste of public or service property. U.K.

Any person subject to this Act who misapplies or wastefully expends any public or service property shall be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Modifications etc. (not altering text)

C3 S. 30 extended (E.W.) (S.) by Rehabilitation of Offenders Act 1974 (c. 53), s. 2(3)(b)

31 Offences relating to issues and decorations. U.K.

(1) Every person subject to this Act who makes away with (whether by pawning, selling, destroying or in any other way), or loses or by negligence damages or allows to be damaged—

(a) any clothing, arms, ammunition or other equipment issued to him for his use for naval purposes; or

(b) any naval, military or air force decoration granted to him,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2) It shall be a defence for a person charged under this section with losing any property that he took reasonable steps for its care and preservation.

Modifications etc. (not altering text)

C4 S. 31 extended (E.W.) (S.) by Rehabilitation of Offenders Act 1974 (c. 53), s. 2(3)(b)

Offences relating to billeting and requisitioning of vehicles, etc.F459 U.K.

32 Billeting offences. U.K.

Every person subject to this Act who—

(a) knowing that no billeting requisition [F44 issued under section 67(1) of the M2 Armed Forces Act 1971], is in force authorising him to demand any billets, or that he is otherwise not authorised to demand them, obtains those billets or orders or procures another person to obtain them;

(b) takes or agrees to take, or demands, from a person on whom he or any other person or any vehicle is or is to be billeted in pursuance of such a requisition any money or thing as consideration for not requiring, or ceasing to require, accommodation for himself or the said other person or standing room for the vehicle; or

(c) wilfully or by wilful neglect destroys or damages, or causes or allows to be destroyed or damaged, any premises in which he is billeted in pursuance of such a requisition, or any property being in such premises,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

Textual Amendments

F44 Words substituted by Armed Forces Act 1971 (c. 33), s. 67(3)

Marginal Citations

M2 1971 c. 33.

33 Offences in relation to requisitioning of vehicles, etc. U.K.

(1) Every person subject to this Act who—

(a) knowing that no requisitioning order [F45 issued under section 67(1) of the M3 Armed Forces Act 1971], is in force authorising him to give directions for the provision of any vehicle, or that he is otherwise not authorised to give such directions, gives directions for the provision of the vehicle or orders or procures another person to give such directions;

(b) in purported exercise of powers conferred by such a requisitioning order takes, or orders or procures any other person to take, possession of a vehicle, knowing that no such requisition order is in force under which the taking possession of the vehicle could be authorised, or that the taking possession thereof is otherwise not authorised under such an order; or

(c) takes or agrees to take, or demands, from any person any money or thing as consideration for directions, or any particular directions, for the provision of a vehicle not being given, or possession of a vehicle not being taken, or not being retained, under such a requisitioning order,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2) Subsection (1) of this section shall apply in relation to horses, mules, food and forage, and in relation to other chattels required—

(a) for vehicles, horses or mules furnished or to be furnished in pursuance of a requisitioning order [F45 issued under section 67(1) of the M4 Armed Forces Act 1971], or for use in connection with such vehicles, horses or mules; or

(b) for persons or vehicles billeted in pursuance of a billeting requisition issued as aforesaid, or otherwise temporarily accommodated or to be so accommodated, or for use in connection with such persons or vehicles,

as it applies in relation to vehicles.

Textual Amendments

F45 Words substituted by Armed Forces Act 1971 (c. 33), s. 67(3)

Marginal Citations

M3 1971 c. 33.

M4 1971 c. 33.

Offences relating to, and by, persons in custody [F46 33A.F459 U.K.

Textual Amendments

F46 Ss. 33A-33C inserted by Armed Forces Act 1971 (c. 33), ss. 22, 78(4)

33A Permitting escape, and unlawful release of prisoners. U.K.

(1) Every person subject to this Act who wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard, shall be liable to imprisonment or any less punishment authorised by this Act.

(2) Every person subject to this Act who—

(a) without proper authority releases any person who is committed to his charge, or

(b) without reasonable excuse allows to escape any person who is committed to his charge, or whom it is his duty to guard,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

33B Resistance to arrest. U.K.

(1) Every person subject to this Act who, being concerned in any quarrel or disorder, refuses to obey any officer who orders him into arrest, or . . . F47 uses violence to, or offers violence to, any such officer, shall be guilty of an offence against this section whether or not the officer is his superior officer.

(2) Every person subject to this Act who . . . F47 uses violence to, or offers violence to, any person, whether subject to this Act or not, whose duty it is to apprehend him or in whose custody he is shall be guilty of an offence against this section.

(3) Every person guilty of an offence against this section shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

Textual Amendments

F47 Words repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), ss. 4(1), 16(2), Sch. 2

33C Escape from confinement. U.K.

Every person subject to this Act who escapes from arrest, prison or other lawful custody (whether naval or not), shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Miscellaneous offencesF459 U.K.

34 Unauthorised disclosure of information. U.K.

(1) Every person subject to this Act who without lawful authority discloses or purports to disclose, whether orally, in writing, by signal or by any other means whatsoever, information relating to any matter upon which information would or might be useful to an enemy shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2) It shall be a defence for a person charged with an offence under this section that he did not know and had no reasonable cause to believe that the information disclosed related to a matter upon which information would or might be directly or indirectly useful to an enemy.

[F48 34A False statements on entry. U.K.

Any person who, when offering himself to be entered for service in the Royal Navy, has knowingly made a false answer to any question put to him in connection with his entry into such service by, or by the direction of, an officer or other person authorised under regulations made by the Defence Council to enter persons for such service shall, if he has since become and remains subject to this Act, be liable to imprisonment for a term not exceeding three months or any less punishment authorised by this Act.]

Textual Amendments

F48 S. 34A inserted by Armed Forces Act 1971 (c. 33), ss. 25, 78(4)

Modifications etc. (not altering text)

C5 S. 34A extended (E.W.) (S.) by Rehabilitation of Offenders Act 1974 (c. 53), s. 2(3)(b)

[F49 35 Falsification of documents. U.K.

(1) A person subject to this Act who—

(a) makes an official document which is to his knowledge false in a material particular, or

(b) makes in any official document an entry which is to his knowledge false in a material particular, or

(c) tampers with the whole or any part of an official document (whether by altering it, destroying it, suppressing it, removing it or otherwise), or

(d) with intent to deceive, fails to make an entry in an official document,

is liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2) For the purposes of this section—

(a) a document is official if it is or is likely to be made use of, in connection with the performance of his functions as such, by a person who holds office under, or is in the service of, the Crown; and

(b) a person who has signed or otherwise adopted as his own a document made by another shall be treated, as well as that other, as the maker of the document.

(3) In this section “document” means anything in which information of any description is recorded.]

Textual Amendments

F49 S. 35 substituted (31.1.1997) by 1995 c. 38, s. 15(1), Sch. 1 para. 3 (with ss. 1(3), 6(4)(5) and 14); S.I. 1996/3217, art. 2

[F50 35A Offences against civilian population. U.K.

Every person subject to this Act who, in any country or territory outside the United Kingdom, commits any offence against the person or property of any member of the civilian population shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Textual Amendments

F50 S. 35A inserted by Armed Forces Act 1971 (c. 33), ss. 27, 78(4)

[F51 35B Offences against morale. U.K.

Any person subject to this Act who spreads (whether orally, in writing, by signal, or otherwise) reports relating to operations of Her Majesty’s forces, of any forces co-operating therewith, or of any part of any of those forces, being reports likely to create despondency or unnecessary alarm, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Textual Amendments

F51 S. 35B inserted by Armed Forces Act 1971 (c. 33), ss. 28(1)(3), 78(4)

36 Cruelty or scandalous conduct by officers. U.K.

Every officer subject to this Act who [F52 behaves in a scandalous manner] unbecoming the character of an officer shall be liable to dismissal from Her Majesty’s service with or without disgrace.

Textual Amendments

F52 Words substituted by Armed Forces Act 1971 (c. 33), ss. 29(3), 78(4)

Modifications etc. (not altering text)

C6 S. 36 extended (E.W.) (S.) by Rehabilitation of Offenders Act 1974 (c. 53), s. 2(3)(b)

[F53 36A Ill-treatment of persons of inferior rank etc. U.K.

If—

(a) any officer subject to this Act . . . F54 ill-treats any officer subject thereto of inferior rank or less seniority, or any rating so subject, or

(b) any rating subject to this Act and of or above the rate of leading seaman . . . F54 ill-treats any rating subject thereto of inferior rate or less seniority,

he shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Textual Amendments

F53 S. 36A inserted by Armed Forces Act 1971 (c. 33), ss. 30, 78(4)

F54 Words repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), ss. 4(1), 16(2), Sch. 2

37 Disgraceful conduct. U.K.

Every person subject to this Act who is guilty of any [F55 disgraceful conduct of a cruel, indecent or unnatural kind] shall be liable to [F55 imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

Textual Amendments

F55 Words substituted by Armed Forces Act 1971 (c. 33), ss. 31, 78(4)

Modifications etc. (not altering text)

C7 S. 37 extended (E.W.) (S.) by Rehabilitation of Offenders Act 1974 (c. 53), s. 2(3)(b)

38 Offences in relation to courts-martial. U.K.

(1) Every person subject to this Act who—

(a) having been duly summoned or ordered to attend before a court-martial, fails to comply with the summons or order;

(b) refuses to take an oath or make an affirmation when duly required by a court-martial to do so;

(c) refuses to produce any document in his custody or under his control which a court-martial has lawfully required him to produce;

(d) when a witness, refuses to answer any question which a court-martial has lawfully required him to answer;

(e) wilfully insults any person, being a member of a court-martial or a witness or any other person whose duty it is to attend on or before the court, while that person is acting as a member thereof or is so attending, or while that person is going to or returning from the proceedings of the court; or

(f) wilfully interrupts the proceedings of a court-martial, or otherwise misbehaves before the court,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2) References in subsection (1) of this section to a court-martial shall include references to a court-martial held in pursuance of the M5 Army Act 1955, or the M6 Air Force Act 1955, or the law of any colony and to a disciplinary court.

(3) Where an offence against subsection (1) of this section is committed in relation to a court-martial and the court is of opinion that it is expedient that the offender should be dealt with summarily by the court instead of being brought to trial under this Act, the court may by order under the hand of the president sentence [F56 the offender—

(a) if he is an officer, to imprisonment for a term not exceeding twenty-one days, or to a fine not exceeding the amount of his pay for twenty-eight days F57 . . .,

(b) in any other case, to imprisonment or detention for such a term as aforesaid, or to such a fine as aforesaid.]

[F58 (3A) If the offender has attained seventeen years of age but is under twenty-one years of age, [F59 subsection (3)] above shall have effect in relation to him as if the power to impose a sentence of imprisonment were a power to make an order under section 43AA below.]

[F60 (3B) For the purposes of subsection (3) above, a day’s pay shall be taken to be–

(a) subject to paragraph (b) below, the gross pay which is, or would apart from any forfeiture be, issuable to the offender in respect of the day on which the order is made;

(b) if the offender is a special member of a reserve force, the gross pay which would have been issuable to him in respect of that day if he had been an ordinary member of that reserve force of the same rank.

(3C) In subsection (3B)(b) above “special member” and “ordinary member” have the same meaning as in the Reserve Forces Act 1996.]

[F61 (4) References in paragraphs (a) to (f) of subsection (1) of this section to a court-martial or to a member of a court-martial include references to a judicial officer or a person appointed under section 75L of the Army Act 1955 or section 75L of the Air Force Act 1955 and, in relation to an offence committed in relation to a judicial officer, subsection (3) of this section shall have effect as if—

(a) references to a court-martial were references to the judicial officer, and

(b) the words “under the hand of the president” were omitted.]

[F62 (5) References in paragraphs (a) to (f) of subsection (1) of this section to a court-martial include references to the summary appeal court, the court established by section 83ZA of the Army Act 1955 or the court established by section 83ZA of the Air Force Act 1955 and, in relation to an offence committed in relation to the summary appeal court, subsection (3) of this section shall have effect as if the reference to a court-martial were a reference to the summary appeal court.]

Textual Amendments

F56 Words substituted by Armed Forces Act 1971 (c. 33), ss. 23(3), 78(4)

F57 Words in s. 38(3)(a) repealed (1.1.1999) by S.I. 1998/3086, reg. 4(1)(b)

F58 S. 38(3A) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 1(1)(2)

F59 Words substituted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 2

F60 S. 38(3B) and (3C) inserted (1.1.1999) by S.I. 1998/3086, reg. 4(3)

F61 S. 38(4) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 6; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F62 S. 38(5) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 3; S.I. 2000/2366, art. 2 (with Sch. para. 15)

Marginal Citations

M5 1955 c. 18.

M6 1955 c. 19.

39 Conduct to the prejudice of naval discipline. U.K.

Every person subject to this Act who is guilty [F63 whether by any act or omission or otherwise, of conduct] to the prejudice of good order and naval discipline . . . F64 shall be liable to [F65 imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

Textual Amendments

F63 Words substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 4(2)

F64 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F65 Words substituted by Armed Forces Act 1971 (c. 33), ss. 33, 78(4)

Attempts and aiding and abettingF459 U.K.

40 Attempt to commit naval offence. U.K.

Every person subject to this Act who attempts to commit an offence against any of the foregoing provisions of this Act shall be liable to the like punishment as for that offence:

Provided that a person shall not in any case be liable under this section to any greater punishment than imprisonment.

[F66 41 Aiding and abetting etc., and inciting. U.K.

(1) Any person subject to this Act who aids, abets, counsels or procures the commission by another person of an offence against any of the foregoing provisions of this Act or who incites another person to commit any such offence, shall himself be guilty of the offence in question, and shall be liable to be charged, tried and punished accordingly.

(2) A person may be guilty by virtue of subsection (1) above of an offence against section 35 of this Act whether or not he knows the nature of the document in question.]

Textual Amendments

F66 S. 41 substituted by Armed Forces Act 1971 (c. 33), ss. 32(2)(4), 78(4)

Civil offencesF459 U.K.

42 Civil offences. U.K.

(1) Every person subject to this Act who is guilty of any civil offence (that is to say any act or omission which is punishable by the law of England or would be so punishable if committed in England) shall [F67 subject to section 43A below] be liable on conviction under this Act—

(a) in the case of an offence of treason . . . F68 , to death;

(b) in the case of any . . . F68 offence of murder [F69 or of genocide consisting of the killing of any person], to imprisonment for life;

[F70 (c) in the case of any other offence, to such punishment or punishments (being a punishment or punishments authorised by this Act) as could be imposed . . . F71 on conviction by a civil court of the like offence committed in England, or to any punishment so authorised which is less than the maximum punishment which could be so imposed.]

[F72 (1A) Where the corresponding civil offence is one to which [F73 section 109, 110 or 111 of the Powers of Criminal Courts (Sentencing) Act 2000] would apply, the court-martial shall impose the sentence required by subsection (2) of that section unless it is of the opinion that there are exceptional circumstances which justify its not doing so.]

(2) A person subject to this Act may be charged with an offence under this section notwithstanding that he could on the same facts be charged with an offence under any other provision of this Part of this Act.

[F74 (2A) For the purpose of determining under this section whether an attempt to commit an offence is a civil offence, subsection (4) of section 1 of the M7 Criminal Attempts Act 1981 (which relates to the offence of attempt) shall have effect as if for the words “offence which, if it were completed, would be triable in England and Wales as an indictable offence” there were substituted the words “civil offence consisting of an act punishable by the law of England and Wales as an indictable offence or an act which, if committed in England or Wales, would be so punishable by that law”.]

Textual Amendments

F67 Words inserted by Armed Forces Act 1976 (c. 52), s. 10(3)(c)

F68 Words repealed by Murder (Abolition of Death Penalty) Act 1965 (c. 71), Sch.

F69 Words inserted by Genocide Act 1969 (c. 12), s. 1(7)(a)

F70 S. 42(1)(c) substituted by Armed Forces Act 1971 (c. 33), ss. 34(3), 78(4)

F71 Words repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1)(2), Sch. 1 para. 3, Sch. 2

F72 S. 42(1A) inserted (1.10.1997) by 1997 c. 43, s. 55, Sch. 4 para. 3(1); S.I. 1997/2200, art. 2

F73 Words in s. 42(1A) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 18

F74 S. 42(2a) inserted by Criminal Attempts Act 1981 (c. 47), s. 7(1)

Modifications etc. (not altering text)

C8 S. 42 modified (1.10.1997) by 1997 c. 43, s. 7(1); S.I. 1997/2200, art. 2(1)

Marginal Citations

M7 1981 c. 47.

PunishmentsF459 U.K.

[F75 43 Scale of punishments, and supplementary provisions. U.K.

(1) The punishments which may be awarded to persons convicted of offences under this Part of this Act are, subject to the following provisions of this section [F76 and section 43A below], as follows:—

(a) death,

(b) imprisonment,

[F77 (bb) detention by virtue of a custodial order made under section 43AA of this Act;]

(c) dismissal with disgrace from Her Majesty’s service,

(d) dismissal from Her Majesty’s service,

(e) detention for a term not exceeding two years,

(f) forfeiture of seniority for a specified term or otherwise,

(g) dismissal from the ship or naval establishment to which the offender belongs,

(h) disrating,

(i) fine,

(j) severe reprimand,

(k) reprimand,

(l) in the case of an offence which has occasioned any expense, [F78 personal injury], loss or damage, stoppages, that is to say, the recovery, by deductions from the offender’s pay, of a specified sum by way of compensation for the expense, [F78 personal injury] loss or damage, and

(m) such minor punishments as may from time to time be authorised by the Defence Council;

and references in this Act to any punishment authorised by this Act are, subject to the limitation imposed in any particular case by the addition of the word “less”, references to any one or more of the said punishments.

For the purposes of this Part of this Act a punishment specified in any of the above paragraphs shall be treated as less than the punishments specified in the paragraphs preceding that paragraph and greater than those specified in the paragraphs following it:

[F79 Provided that a punishment such as is mentioned in paragraph (e) of this subsection shall not be treated as a less punishment than a punishment such as is mentioned in paragraph (b) or (bb) if the term of detention is longer than the term of imprisonment or, as the case may be, than the term of detention by virtue of the custodial order.]

(2) Subsection (1) above shall have effect—

(a) in relation to a convicted person who is an officer, with the omission of paragraphs (e), (h) and (m),

(b) in relation to a convicted person who is a warrant officer, with the omission of paragraphs (f), (g) and (m), and

(c) in relation to a convicted person who is a rating below the rate of warrant officer with the omission of paragraphs (f) and (g) and, if he is below the rate of leading seaman, of paragraphs (h), (j) and (k) also.

(3) A person [F80 who, otherwise than under section 38(3) of this Act, is] sentenced under this Act to imprisonment shall also be sentenced either to dismissal with disgrace from Her Majesty’s service or to dismissal from Her Majesty’s service:

Provided that, if the sentencing authority fail to give effect to this subsection, their sentence shall not be invalid, but shall be deemed to include a sentence of dismissal from Her Majesty’s service.

(4) A rating of the rate of leading seaman or above [F80 who, otherwise than under section 38(3) of this Act, is] sentenced under this Act to imprisonment, to dismissal from Her Majesty’s service (whether or not with disgrace), or to detention, shall also be sentenced to disrating:

Provided that, if the sentencing authority fail to give effect to this subsection, their sentence shall not be invalid, but shall be deemed to include a sentence of disrating

(5) A sentence of disrating awarded in compliance with subsection (4) above, or deemed to have been awarded by virtue of the proviso to that subsection, shall be one reducing the offender to such rate as may be prescribed in relation to persons of the class to which he belongs by regulations made by the Defence Council; and any other sentence of disrating under this Act may reduce the offender to any rate not lower than that so prescribed.

(6) The amount of a fine that may be awarded under this Act by way of punishment for an offence, except in the case of an offence under section 42 thereof, shall not exceed the amount of the offender’s pay for twenty-eight days or, where the offence was committed on active service, fifty-six days; and in the said excepted case—

(a) the amount of a fine that may be so awarded by a court-martial—

(i) where the civil offence constituting the offence under that section is punishable by a civil court in England only on summary conviction, and is so punishable by a fine, shall not exceed the maximum amount of that fine, and

(ii) where the said civil offence is punishable by a civil court in England on indictment (whether or not it is also punishable on summary conviction) by a fine, shall not exceed the maximum amount of that fine;

(b) the amount of a fine that may be so awarded where the offence is tried summarily—

(i) in any case shall not exceed the amount of the offender’s pay for twenty-eight days or, where the civil offence constituting the offence was committed on active service, fifty-six days, and

(ii) where the said civil offence is punishable by a civil court in England only on summary conviction, and is so punishable by a fine of a maximum amount less than the amount mentioned in sub-paragraph (i) above, shall not exceed that maximum, and

(iii) where the said civil offence is punishable by a civil court in England on indictment by a fine of a maximum amount less than the amount so mentioned (whether or not it is also punishable on summary conviction) shall not exceed that maximum;

F81 . . ..

[F82 (6A) For the purposes of subsection (6) above, a day’s pay shall be taken to be–

(a) subject to paragraph (b) below, the gross pay which is, or would apart from any forfeiture be, issuable to the offender in respect of the day on which the punishment is awarded;

(b) if the offender is a special member of a reserve force, the gross pay which would have been issuable to him in respect of that day if he had been an ordinary member of that reserve force of the same rank.

(6B) In subsection (6A)(b) above “special member” and “ordinary member” have the same meaning as in the Reserve Forces Act 1996.]

[F83 (7) Unless the Secretary of State by order provides that this subsection shall no longer apply, the stoppages awarded in respect of any offence occasioning personal injury of which a person is convicted or any other such offence which is taken into consideration in determining sentence shall not exceed such sum as is for the time being specified by an order made by the Secretary of State.

F83 (8) The power to make an order under subsection (7) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]]

Textual Amendments

F75 S. 43 substituted for ss. 43, 44 by Armed Forces Act 1971 (c. 33), ss. 38, 78(4)

F76 Words inserted by Armed Forces Act 1976 (c. 52), s. 10(3)(d)

F77 S. 43(1)(bb) inserted by Armed Forces Act 1981 (c. 55), s. 2(3)(b)

F78 Words in s. 43(1)(l) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 8(1)(a); S.I. 1991/2719, art. 2

F79 Words substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 4

F80 Words inserted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 1(2)

F81 Words in s. 43(6) repealed (1.1.1999) by S.I. 1998/3086, reg. 3(1)

F82 S. 43(6A) and (6B) inserted (1.1.1999) by S.I. 1998/3086, reg. 3(3)

F83 S. 43(7)(8) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 8(1)(b); S.I. 1991/2719, art. 2

[F84 43A Juveniles U.K.

(1) A person under [F85 21] years of age shall not be sentenced to imprisonment.

[F86 [F87 (1A) Where—

(a) a person under 21 years of age is convicted of murder or any other civil offence the sentence for which is fixed by law as imprisonment for life; or

(b) a person under that age is convicted of any civil offence to which [F88 section 109 of the Powers of Criminal Courts (Sentencing) Act 2000]] would apply and the court is not of the opinion mentioned in subsection (2) of that section,

the court shall sentence him to custody for life unless he is liable to be detained under subsection (3) below.

(1B) Where a person aged [F89 18 years] or over but under 21 years of age is convicted of any other offence for which a person aged 21 years or over would be liable to imprisonment for life [F90 then, subject to subsection (1E) below], the court shall sentence him to custody for life if—

F91 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) it considers that a custodial sentence for life would be appropriate.

(1C) For the purpose of determining whether any method of dealing with a person to whom subsection (1B) of this section applies, other than sentencing him to custody for life, is appropriate, the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.]

[F92 (1D) Subject to subsections (3) and (4) below, the only custodial sentences that a court may award where a person under 21 years of age is convicted or found guilty of an offence are—

(a) a custodial order under section 43AA of this Act or under paragraph 10 of Schedule 4A to this Act; and

(b) a sentence of custody for life under subsection (1A) or (1B) above.

(1E) A court may not—

(a) make a custodial order under section 43AA of this Act; or

(b) pass a sentence of custody for life under subsection (1B) above;

unless it is satisfied—

(i) that the circumstances, including the nature and the gravity of the offence, are such that if the offender were aged 21 or over the court would pass a sentence of imprisonment; and

(ii) that he qualifies for a custodial sentence.

(1F) An offender qualifies for a custodial sentence if—

(a) he has a history of failure to respond to non-custodial sentences and is unable or unwilling to respond to them; or

(b) only a custodial sentence would be adequate to protect the public from serious harm from him; or

(c) the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.]

(2) . . . F93

(3) A person convicted of murder [F94 or any other offence the sentence for which is fixed by law as life imprisonment] who was under 18 years of age when the offence was committed shall not be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against a person convicted of any offence who was under 18 years of age when the offence was committed; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct.

(4) [F95 In any case where—

(a) a person aged 14 or over but under [F96 18 years] of age is] found guilty of a civil offence (other than one the sentence for which is fixed) which is punishable by a civil court in England or Wales on indictment by, in the case of an adult, a term of imprisonment for 14 years or more, [F95 or,

(b) a person under 14 years of age is found guilty of manslaughter, and, in either case, the court] is of opinion that none of the other methods in which the case may be legally dealt with is suitable [F97 the court may sentence that person], to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable by such a civil court in the case of an adult, as may be specified in the sentence; and where such a sentence has been passed, the person on whom it is passed shall during that period be liable to be detained in such place and on such conditions as the Secretary of State may direct .

(5) A sentence of [F98 custody for life or] detention under subsection (3) or (4) above shall be treated for the purposes of this Part of this Act as a punishment authorised by this Act involving the same degree of punishment as a sentence of imprisonment; and section 43(3) and (4) above shall apply to such a sentence of detention [F98 and to a sentence of custody for life] as they apply to a sentence of imprisonment.

(6) A person detained pursuant to the directions of the Secretary of State under this section shall, while so detained, be deemed to be in legal custody.]

[F99 (7) A sentence of detention under section 43(1)(e) of this Act shall be treated for the purposes of this section as a non-custodial sentence and references in this section to a custodial sentence shall be construed accordingly.]

Textual Amendments

F84 S. 43A inserted by Armed Forces Act 1976 (c. 52), s. 10(1)(2)

F85 Figure substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 2(a)

F86 S. 43A(1A)–(1C) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1),s. 58, Sch. 8 para. 2(b)

F87 S. 43A(1A) substituted (1.10.1997) by 1997 c. 43, s. 55, Sch. 4 para. 3(2); S.I. 1997/2200, art. 2

F88 Words in s. 43A(1A)(b) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 19 (which substitution falls (prosp.) by reason of the repeal of Sch. 9 para. 19 by 2000 c. 43, ss. 75, 80(1), Sch. 8)

F89 Words in s. 43A(1B) substituted (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53), ss. 71, 102(2)(8), Sch. 9 para. 5; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

F90 Words in s. 43A(1B) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 2(2)(a)(6); S.I. 1991/2719, art. 2

F91 S. 43A(1B)(a) repealed (1.1.1992) by Armed Forces Act 1991 (c. 62), ss. 2(2)(b)(6), 26(2), Sch. 3; S.I. 1991/2719, art. 2

F92 S. 43A(1D)-(1F) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 2(3)(6); S.I. 1991/2719, art. 2

F93 S. 43A(2) repealed by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 78, Sch. 16

F94 Words in s. 43A(3) inserted (30.11.2000 with effect as mentioned in Sch. 7 para. 29(2) of the amending Act) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 29(1)(e)

F95 Words in s. 43A(4) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 2(4)(a)(b)(6); S.I. 1991/2719

F96 Words in s. 43A(4)(a) substituted (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53), ss. 71, 102(2)(8), Sch. 9 para. 5; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

F97 Words in s. 43A(4) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 2(4)(c)(6); S.I. 1991/2719, art. 2

F98 Words inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 2(d)

F99 S. 43A(7) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 2(5)(6); S.I. 1991/2719, art. 2

[F100 43AA Young service offenders: custodial orders. U.K.

(1) Where a person who has attained seventeen years of age but is under twenty-one years of age is found guilty by a court-martial of an offence punishable under this Act with imprisonment, the court shall have power, F101 . . . to make an order (in this section referred to as a “custodial order”) committing him to be detained in accordance with the provisions of this section for a [F102 period to be specified in the order [F103 being not less than 21 days and][F104 which—

(a) shall be not less than the appropriate minimum period, that is to say—

(i) in the case of an offender who has attained eighteen years of age, the period of 21 days; or

(ii) in the case of an offender who is under that age, the period of two months; and

(b) shall not exceed] the maximum period for which he could have been sentenced to imprisonment if he had attained the age of twenty-one years]

F105 (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F106 (1AA) The court shall not make a custodial order committing an offender aged 17 to be detained for a period exceeding twelve months or for a period such that the continuous period for which he is committed to be detained under that order and any one or more other custodial orders exceeds twelve months.]

(1B) For the purposes of determining whether [F107 it is satisfied as mentioned in sub-paragraphs (i) and (ii) of subsection (1E) of section 43A of this Act with respect to any person] the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.]

(2) If a person is outside the United Kingdom at the time a custodial order is made in respect of him, he shall as soon as practicable be removed to the United Kingdom.

(3) A person in respect of whom a custodial order has been made shall be detained in such appropriate institution as the Secretary of State may direct, and any enactment applying to persons detained in any such institution shall apply to a person so detained under this section.

(4) A custodial order shall be sufficient authority for the detention of the person subject to it in service custody until he is received into the institution specified in the Secretary of State’s direction.

[F108 (5) The following provisions of this Act shall apply in the case of a sentence under a custodial order as they apply in the case of a sentence of imprisonment, that is to say—

(a) sections 43(3) and (4), 85(1), 86(1) and (3), 89(3) and 92(1); and

(b) for the period before a person sentenced under a custodial order is received into the institution where he is to be detained (or for the currency of the sentence if its term ends before he is so received), sections 81, 82, 87, 88, 104, 119 and 130A;

and, accordingly, references in those provisions to a sentence of imprisonment shall include for the purposes of this subsection references to a sentence under a custodial order.]

(6) In this section “appropriate institution” means—

[F109 (a) where the offender is in or removed to England or Wales, any institution in which a person sentenced to detention in a young offender institution could be detained, [F110 section 98 of the Powers of Criminal Courts (Sentencing) Act 2000] having effect in relation to the offender as it has effect in relation to an offender sentenced to detention in a young offender institution;]

[F111 (b) where the offender is in or removed to Scotland, a young offenders institution;]

(c) where the offender is in or removed to Northern Ireland, a young offenders centre.

[F112 (6A) [F113 Sections 16 and 17 of the Crime (Sentences) Act 1997 (as modified by section 19 of that Act)] (release of young offenders) shall apply to persons released from a term of detention under a custodial order as it applies to persons released from [F114 a sentence of detention in a young offender institution].]

[F115 (6B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(7) This section does not apply to offenders who are civilians (as regards whom similar provision is made by paragraph 10 of Schedule 4A to this Act).

Textual Amendments

F100 S. 43AA inserted by Armed Forces Act 1981 (c. 55), s. 2(2)

F101 Words in s. 43AA(1) repealed (1.1.1992) by Armed Forces Act 1991 (c. 62), ss. 3(1), 26(2). Sch. 3; S.I. 1991/2719, art. 2 and repealed (1.10.1992 for E.W.) by Criminal Justice Act 1991 (c. 53, SIF 39:1), ss. 71, 101(2), 102(2)(8), Sch. 9 para. 6(b), Sch. 13; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2

F102 Words in s. 43AA(1) substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 3(a)

F103 Words in s. 43AA(1) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 3(1); S. I. 1991/2719, art. 2 and repealed (1.10.1992 for E.W.) by Criminal Justice Act 1991 (c. 53), ss. 101(2), 102(2)(8), Sch. 13; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2

F104 Words in s. 43AA(1) substituted (1.10.1992 for E.W.) by Criminal Justice Act 1991 (c. 53), SS. 71, 102(2)(8), Sch. 9 para. 6; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2

F105 S. 43AA(1A) repealed (1.1.1992) by Armed Forces Act 1991 (c. 62), ss. 3(2), 26(2), Sch. 3; S.I. 1991/2719, art. 2 and repealed (1.10.1992 for E.W.) by Criminal Justice Act 1991 (c. 53, SIF 39:1), ss. 71, 101(2), 102(2)(8), Sch. 9 para. 6(b), Sch. 13; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2

F106 S. 43AA(1AA) inserted (1.10.1992 for E.W.) by Criminal Justice Act 1991 (c. 53), ss. 71, 102(2)(8), Sch. 9 para. 6(c); S.I. 1992/333, arts. 2(2), 3(1), Sch. 2

F107 Words in s. 43AA(1B) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 3(3)(4); S.I. 1991/2719, art. 2

F108 S. 43AA(5) substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 5(5)

F109 S. 43AA(6)(a) substituted (E.W.) by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 123(6), Sch. 8 para. 4(b)

F110 Words in s. 43AA(6)(a) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 20

F111 S. 43AA(6)(b) substituted (S.) by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 124(4), Sch. 9 para. 2(b)

F112 S. 43AA(6A) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 3(d)

F113 Words in s. 43AA(6A) substituted (1.12.1999) by 1997 c. 43, s. 55(2), Sch. 4 para. 3(3); S.I. 1999/3096, art. 2(d)

F114 Words in s. 43AA(6A) substituted (1.10.1988) by virtue of 1988 c. 33, s. 123, Sch. 8 Pt. I paras. 1, 2; S.I. 1988/1408, art. 2(1), Sch.

F115 S. 43AA(6B) repealed (1.10.1993) by 1993 c. 9, ss. 47(3), 48(7), Sch. 7 Pt. I (with Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4).

[43AB F116 Reasons to be given where custodial sentence awarded to young offender. U.K.

(1) This section applies where a court—

(a) makes a custodial order under section 43AA of this Act, or

(b) passes a sentence of custody for life under section 43A(1B) of this Act.

(2) It shall be the duty of the court—

(a) to state in open court and to record in the proceedings that it is satisfied that the offender qualifies for a custodial sentence under one or more of the paragraphs of subsection (1F) of section 43A of this Act, the paragraph or paragraphs in question, and why it is so satisfied; and

(b) to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.

(3) Where a court makes a custodial order and, in accordance with its duty under subsection (2) above, makes the statement required by paragraph (a) of that subsection, the matters stated shall be specified in the committal order.]

Textual Amendments

F116 S. 43AB inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 4(2); S.I. 1991/2719, art. 2

[F117 43B Power to impose imprisonment for default in payment of fines. U.K.

(1) Subject to the provisions of this section, if a court-martial imposes a fine on a person found guilty of any offence—

(a) who is sentenced to imprisonment on the same occasion for the same or another offence or,

(b) who is already serving or otherwise liable to serve a term of imprisonment, [F118 or

(c) in respect of whom the court makes an order under section 43AA above on the same occasion for the same or another offence, or

(d) who is already serving or otherwise liable to serve a period of detention under such an order.]

it may make an order fixing a further consecutive term of imprisonment [F119 or detention] . . . F120 which the said person is to undergo if any part of the fine is not duly paid or recovered on or before the date on which he could otherwise be released.

[F121 (2) Subject to subsections (4) and (5) below, the Table in [F122 section 139(4) of the Powers of Criminal Courts (Sentencing) Act 2000] (maximum periods of imprisonment for default in payment of fines etc.), as from time to time amended under section 143 of the Magistrates’ Courts Act M8 1980, shall have effect for the purpose of determining the maximum periods of further imprisonment or detention that may be specified under subsection (1) above for fines of the amounts set out in that Table.]

(3) Where the whole amount of the said fine is paid or recovered in the prescribed manner the order under subsection (1) above shall cease to have effect, and the person subject to it shall be released unless he is in custody for some other cause.

(4) Where part of the said amount is paid or recovered in such manner as may be prescribed by regulations of the Defence Council, the period of the further term of imprisonment [F123 or detention] specified under subsection (1) above shall be reduced by such number of days as bears to the total number of days in that period less one day the same proportion as the amount so paid or recovered bears to the amount of the said fine.

(5) In calculating the reduction required under the last preceding subsection any fraction of a day shall be left out of account.

[F124 (5A) An order imposing a term of detention under this section shall be given effect as if it were a custodial order under section 43AA above.]

(6) in this section, references to the due recovery of any amount include references to deductions from pay under Part IV of this Act, but do not include references to amounts forfeited under the said Part IV.]

Textual Amendments

F117 S. 43B inserted by Armed Forces Act 1976 (c. 52), s. 13, Sch. 6 paras. 1, 2

F118 S. 43(B)(1)(c)(d) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 4(1)(a)(2)

F119 Words inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 4(1)(b)(2)

F120 Words repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(2), Sch. 2

F121 S. 43B(2) substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 5

F122 Words in s. 43B(2) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 21

F123 Words inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 4(1)(b)(2)

F124 S. 43B(5A) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 4(1)(c)(2)

Marginal Citations

M8 1980 c.43(82).

Part IIF459 U.K. Trial and punishment of offences

ArrestF459 U.K.

45 Duty to bring offenders to justice and powers of arrest. U.K.

(1) It shall be the duty of every person subject to this Act who knows or has reasonable grounds for suspecting that any other person subject thereto is committing or has committed an offence under any provision of Part I of this Act, to take all reasonable steps within his power to cause that person to be brought to justice.

(2) Subject to Standing Orders of the commanding officer of any of Her Majesty’s ships or naval establishments, the following persons shall have power to arrest a person subject to this Act who is found committing or is alleged to have committed or is reasonably suspected of having committed any such offence as aforesaid, that is to say:—

(a) in the case of an officer, an officer subject to this Act who is his superior officer or, if the person to be arrested is engaged in a mutiny, quarrel or disturbance, any officer subject to this Act;

(b) in the case of a rating, an officer subject to this Act, a [F125 warrant officer] chief petty officer, petty officer or leading rating subject to this Act who is of superior rate or senior to him in the same rate, and any rating exercising authority as a member of the regulating staff or as a member of the staff of the officer of the watch;

(c) in any case, a provost officer and any officer or person legally exercising authority under or on behalf of a provost officer:

Provided that an officer shall not be arrested by virtue of paragraph (c) of this subsection except on the order of another officer.

(3) Any power of arrest under this section may be exercised either personally or by ordering into arrest the person to be arrested or by giving orders for that person’s arrest.

Textual Amendments

F125 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 3 para. 5(1)

Valid from 18/07/2008

[F126 45A Power of arrest in anticipation of commission of offence U.K.

(1) A service policeman may arrest a person whom he reasonably suspects of being about to commit an offence under any provision of Part 1 of this Act.

(2) Subsection (7) of section 45 of this Act applies in relation to the power of arrest conferred by this section as it applies in relation to the power of arrest conferred by that section.

(3) Where a person is arrested under this section—

(a) the arrest must be reported as soon as practicable to his commanding officer; and

(b) he may be kept in naval, military or air-force custody until such time as a service policeman is satisfied that the risk of his committing the offence concerned has passed.]

Textual Amendments

F126 S. 45A inserted (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), art. 9

F127 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F127 S. 46 repealed (2.10.2000) by 2000 c. 4, ss. 10, 27, Sch. 1 para. 7, Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 15)

47 Evidence of arrest or surrender. U.K.

(1) In any proceedings for an offence under Part I of this Act against a person who—

(a) has surrendered himself to any consular officer;

(b) has been taken on arrest or surrender into the custody of a provost officer; or

(c) has been taken on arrest or surrender into custody at any police station, guard-room or other place in any part of Her Majesty’s dominions,

a certificate purporting to be signed by the consular or provost officer, or the officer in charge of the police station, guard-room or other place, as the case may be, containing a statement of the fact, date, time and place of arrest or surrender, and whether or not the person charged was wearing the uniform of any of Her Majesty’s naval forces at the time of arrest or surrender, shall be evidence of the matter therein contained.

(2) In any proceedings for an offence of desertion, absence without leave or improperly leaving his ship . . . F128 against a person who on arrest or surrender has been brought before a court of summary jurisdiction in accordance with the provisions of Part III of this Act, a certificate purporting to be signed by a justice of the peace containing a statement of the fact, date, time and place of arrest or surrender, and whhe person charged was wearing the uniform of any of Her Majesty’s naval forces at the time of arrest og such particulars as to the proceedings before the court as may be prescribed by regulations made by [F129 the Defence Council] by statutory instrument, shall be evidence of the matter therein contained.

(3) In this section “provost officer” includes a corresponding officer of any of the forces of a Commonwealth country, or of a force raised under the law of any colony.

Textual Amendments

F128 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F129 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Modifications etc. (not altering text)

C9 S. 47(2) modified by Armed Forces Act 1966 (c. 45), s. 33

[F130 CustodyF459 U.K.

Textual Amendments

F130 Ss. 47A-47F and crossheading inserted (2.10.2000) by 2000 c. 4, s. 1(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F131 47A Limitations on custody without charge. U.K.

(1) A person arrested under section 45 of this Act shall not be kept in naval custody without being charged except in accordance with sections 47B to 47D of this Act.

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

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

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

it shall be the duty of the commanding officer, subject to subsection (3) below, to order his immediate release from naval custody.

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

(4) For the purposes of this section and sections 47B to 47L of this Act a person is to be treated as charged with an offence when he is informed in accordance with regulations of the Defence Council that a charge is to be reported to his commanding officer under section 52B(1) of this Act.

Textual Amendments

F131 Ss. 47A-47F inserted (2.10.2000) by 2000 c. 4, s. 1(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F132 47B Authorisation of custody without charge. U.K.

(1) Where a person is arrested under section 45 of this Act—

(a) the arrest, and

(b) any grounds on which he is being kept in naval custody without being charged,

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

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

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

(b) to obtain such evidence by questioning him.

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

(a) whether the requirements of subsection (4) below 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 naval 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 naval custody without being charged is necessary to secure or preserve evidence relating to an 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 naval custody.

(5) An authorisation under subsection (4) above—

(a) if given less than 12 hours after the relevant time, shall end not more than 12 hours after the relevant time;

(b) if given not less than 12 but less than 36 hours after the relevant time, shall end not more than 36 hours after the relevant time;

(c) if given not less than 36 but less than 48 hours after the relevant time, shall end not more than 48 hours after the relevant time.

(6) A person shall not be kept in naval custody later than 48 hours after the relevant time without being charged except in accordance with section 47D of this Act.

(7) In this Act “the relevant time” in relation to a person arrested under section 45 of this Act means the time of the arrest.

Textual Amendments

F132 Ss. 47A-47F inserted (2.10.2000) by 2000 c. 4, s. 1(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

Modifications etc. (not altering text)

C10 S. 47B(1)(3)(5)(6) modified (4.9.2000) by S.I. 2000/2366, art. 3, Sch. para. 4 (with Sch. para. 15)

F133 47C Review of custody by commanding officer. U.K.

(1) The commanding officer of a person kept in naval custody in accordance with section 47B of this Act shall, subject to subsection (3) below, review the keeping of that person in naval custody not later than the end of the period for which it is authorised.

(2) Subsections (4) and (5) of section 47B of this Act shall apply on each review under this section as they apply where a report is received under subsection (1) of that section.

(3) A review may be postponed—

(a) if, having regard to all the circumstances prevailing at the expiry of the last authorisation under subsection (4) of that section, it is not practicable to carry out the review at that time;

(b) without prejudice to the generality of paragraph (a) above—

(i) if at that time the person in naval 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 he is being questioned; or

(ii) if at that time the commanding officer is not readily available.

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

(a) it shall be carried out as soon as practicable after the expiry of the last authorisation under section 47B(4) of this Act, and

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

Textual Amendments

F133 Ss. 47A-47F inserted (2.10.2000) by 2000 c. 4, s. 1(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F134 47D Extension of custody without charge. U.K.

(1) If, on an application by the commanding officer of a person arrested under section 45 of this Act, a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in naval custody is justified, the judicial officer may by order authorise the keeping of that person in naval custody.

(2) A judicial officer 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 shall be entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented—

(a) the judicial officer shall adjourn the hearing to enable him to obtain representation, and

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

(4) For the purposes of this section, the continued keeping of a person in naval custody is justified only if—

(a) keeping him in custody without charge is necessary to secure or preserve evidence relating to an 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.

(5) Subject to subsection (7) below, an application under this section may be made—

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

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

(6) Where subsection (5)(b) above applies, an authorisation on a review under section 47C of this Act may be for a period ending more than 48 hours after the relevant time, 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 relevant time.

(7) If—

(a) an application under this section is made more than 48 hours after the relevant time, and

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

the judicial officer shall refuse the application.

(8) Where on an application under this section relating to any person the judicial officer is not satisfied that there are reasonable grounds for believing that continuing to keep that person in naval custody is justified, he shall—

(a) refuse the application, or

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

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

(10) The period for which a judicial officer, on an application under this section, may authorise the keeping of a person in naval custody shall be such period, ending not more than 96 hours after the relevant time, as he thinks fit having regard to the evidence before him.

(11) Where a judicial officer refuses an application under this section at any time less than 48 hours after the relevant time, he may direct that the person to whom it relates forthwith be charged or released from naval custody.

(12) Where a judicial officer refuses an application under this section at any later time, he shall direct that the person to whom it relates forthwith be charged or released from naval custody.

Textual Amendments

F134 Ss. 47A-47F inserted (2.10.2000) by 2000 c. 4, s. 1(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F135 47E Custody without charge: other cases. U.K.

(1) Sections 47A to 47D of this Act apply—

(a) where a person is delivered into naval custody under section 103(3), 108(2) or 109(1) or (3) of this Act or under Schedule 2 to the M9 Reserve Forces Act 1996, and

(b) in any other case where a person arrested by a constable is delivered into naval custody,

as they apply where a person is arrested under section 45 of this Act, subject to such modifications as the Secretary of State may by regulations made by statutory instrument prescribe.

(2) In those cases references to the relevant time are—

(a) in relation to a person delivered into naval custody following arrest under section 103 or 105 of this Act or paragraph 2 of Schedule 2 to the 1996 Act or otherwise following arrest by a constable, references to the time of the arrest;

(b) in relation to a person delivered into naval custody following surrender under section 188 of this Act or paragraph 6 of that Schedule, references to the time of the surrender.

(3) Regulations under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F135 Ss. 47A-47F inserted (2.10.2000) by 2000 c. 4, s. 1(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

Marginal Citations

M9 1996 c. 14.

F136 47F Custody without charge: supplementary. U.K.

(1) The Defence Council may by regulations make provision with respect to—

(a) the delegation by the commanding officer of a person in naval custody of any of the commanding officer’s functions under sections 47A to 47D of this Act to any other person subject to this Act;

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

(c) the keeping of written records relating to compliance with any requirement of sections 47A to 47D of this Act or of regulations under paragraph (b) above.

(2) Any reference in sections 47B to 47D of this Act to a period of time is to be treated as approximate only.]

Textual Amendments

F136 Ss. 47A-47F inserted (2.10.2000) by 2000 c. 4, s. 1(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F137 47G Custody after charge. U.K.

(1) Where a person subject to this Act (“the accused”) is kept in naval custody after being charged with an offence under any provision of Part I of this Act, he shall be brought before a judicial officer as soon as practicable.

(2) Where the accused is brought before a judicial officer in accordance with subsection (1) above, the judicial officer may by order authorise the keeping of the accused in naval custody, but only if—

(a) the judicial officer is satisfied that there are substantial grounds for believing that the accused, if released from naval custody, would—

(i) fail to attend any hearing in the proceedings against him,

(ii) commit an offence while released, or

(iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) the judicial officer is satisfied that the accused should be kept in naval custody for his own protection or, if he is under 17 years of age, for his own welfare;

(c) the judicial officer is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this subsection for want of time since the accused was charged with the offence; or

(d) the accused, having been released from naval custody after being charged with the offence, has deserted or absented himself without leave.

(3) In taking the decision required by subsection (2)(a) above, the judicial officer shall have regard to such of the following considerations as appear to him to be relevant—

(a) the nature and seriousness of the alleged offence (and the probable method of dealing with the accused for it),

(b) the character, antecedents, associations and social ties of the accused,

(c) the accused’s behaviour on previous occasions while charged with an offence and released from naval custody or while on bail in criminal proceedings,

(d) the strength of the evidence that the accused committed the offence,

as well as to any others which appear to be relevant.

(4) If—

(a) the accused is charged with an offence to which this subsection applies;

(b) representations are made as to any of the matters mentioned in subsection (2)(a) above; and

(c) the judicial officer decides not to authorise the keeping of the accused in naval custody,

the judicial officer shall state the reasons for his decision and shall cause those reasons to be included in the record of the proceedings.

(5) Subsection (4) above applies to any offence under section 42 of this Act where the civil offence constituting the offence is—

(a) murder;

(b) manslaughter;

(c) rape;

(d) attempted murder; or

(e) attempted rape.

(6) The period for which a judicial officer may, by an order under subsection (2) above, authorise the keeping of the accused in naval custody shall be such period, ending (subject to section 47H(7) of this Act) not later than 8 days after the day on which the order is made, as he thinks fit having regard to the evidence before him.

(7) An order under subsection (2) above does not authorise the keeping of the accused in naval custody—

(a) if the accused is subsequently released from naval custody, at any time after his release; or

(b) at any time after the award of punishment on summary trial of the charge or any amended or substituted charge.

(8) Subsection (1) above does not apply where the accused is charged at a time when he is kept in naval custody by reason of an award or sentence under this Act or of an order under subsection (2) above, unless that reason ceases to apply.]

Textual Amendments

F137 S. 47G inserted (2.10.2000) by 2000 c. 4, s. 2(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F138 47H Review of custody after charge. U.K.

(1) Where the keeping of the accused in naval custody is authorised by an order under section 47G(2) of this Act, it shall be reviewed by a judicial officer not later than the end of the period for which it is authorised.

(2) If at any time it appears to the accused’s commanding officer that the grounds on which such an order was made have ceased to exist, he shall—

(a) release the accused from naval custody, or

(b) request a review.

(3) Where a request is made under subsection (2) above, a review shall be carried out as soon as practicable.

(4) Subsections (2) to (6) of section 47G of this Act apply on a review as they apply where the accused is brought before a judicial officer under subsection (1) of that section.

(5) At the first review the accused may support an application for release from naval custody with any argument as to fact or law that he desires (whether or not he has advanced that argument previously).

(6) At subsequent reviews the judicial officer need not hear arguments as to fact or law which have been heard previously.

(7) On a review at a hearing at which the accused is legally represented, the judicial officer may, if the accused consents, authorise the keeping of the accused in naval custody for a period of not more than 28 clear days.

(8) In this section “review” means a review under subsection (1) above.]

Textual Amendments

F138 S. 47H inserted (2.10.2000) by 2000 c. 4, s. 3(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

Modifications etc. (not altering text)

C11 S. 47H(6) applied (2.10.2000) by S.I. 2000/2367, rule 23

[F139 47J Custody during court-martial proceedings. U.K.

(1) Where the accused is kept in naval custody under an order under section 47G(2) of this Act at any time after the commencement of his trial by court-martial, section 47H of this Act (and section 47G as applied by that section) shall apply with the following modifications.

(2) In relation to a review before the announcement of the court-martial’s finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate.

(3) In section 47G(2), after paragraph (d) there shall be inserted— “; or

(e) the accused’s case has been adjourned for inquiries or a report and it appears to the judicial officer that it would be impracticable to complete the inquiries or make the report without keeping the accused in naval custody.”

(4) Section 47G(3)(d) does not apply in the case of an accused who is awaiting sentence.

(5) An order under section 47G(2) does not authorise the keeping of the accused in naval custody after he is sentenced by the court-martial.

(6) Subsection (1) above shall cease to apply (but without prejudice to any order already made by virtue of that subsection) if the court-martial is dissolved.]

Textual Amendments

F139 S. 47J inserted (2.10.2000) by 2000 c. 4, s. 4(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F140 47K Release from custody after charge or during proceedings. U.K.

(1) This section applies where, at a hearing under section 47G(1) of this Act or on a review under section 47H(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in naval custody.

(2) Where this section applies, the accused—

(a) subject to paragraph (b) below, shall be released from naval custody forthwith, but

(b) if he is a person to whom section 51 of this Act applies or is subject to this Act by virtue of section 111(3) or (5) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.

(3) A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.

(4) A person guilty of an offence under this section shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(5) Any such offence shall be treated as if it were an offence under Part I of this Act.]

Textual Amendments

F140 S. 47K inserted (2.10.2000) by 2000 c. 4, s. 5(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F141 47L Arrest during proceedings. U.K.

(1) Except where subsection (3) below applies, the commanding officer of a person subject to this Act (“the accused”) who—

(a) has been charged with, or is awaiting sentence for, an offence under any provision of Part I of this Act, and

(b) is not in naval custody,

may, if satisfied that taking the accused into naval custody is justified, give orders for his arrest.

(2) Subject to subsection (4) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial’s finding on the charge or every charge against the accused.

(3) Where this subsection applies, the judge advocate, if satisfied that taking the accused into naval custody is justified, may direct the arrest of the accused; and any person with power to arrest the accused for an offence under Part I of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.

(4) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.

(5) For the purposes of this section, taking the accused into naval custody is justified if there are substantial grounds for believing that, if not taken into naval custody, he would—

(a) fail to attend any hearing in the proceedings against him,

(b) commit an offence,

(c) injure himself, or

(d) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

(6) Taking the accused into naval custody is also justified for the purposes of this section if—

(a) the accused is a person to whom section 51 of this Act applies, and

(b) he has failed to attend any hearing in the proceedings against him.

(7) A person arrested under subsection (1) above, if kept in naval custody—

(a) shall be treated as being in naval custody under an order under section 47G(2) of this Act, and

(b) shall be brought as soon as practicable before a judicial officer to be dealt with as on a review under section 47H(1) of this Act.

(8) A person arrested under subsection (3) above—

(a) shall be treated as being in naval custody under an order under section 47G(2) of this Act, and

(b) shall be brought as soon as practicable before the judge advocate on whose direction the arrest was made (unless already before him), and shall be dealt with by him as on a review under section 47H(1) of this Act.]

Textual Amendments

F141 S. 47L inserted (2.10.2000) by 2000 c. 4, s. 6(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

Modifications etc. (not altering text)

C12 S. 47L(1)(7) modified (4.9.2000) by S.I. 2000/2366, art. 3, Sch. para. 7 (with Sch. para. 15)

[F142 47M Judicial officers. U.K.

(1) Judicial officers shall be appointed for the purposes of this Act by the Chief Naval Judge Advocate.

(2) No person shall be appointed under this section unless—

(a) he is qualified under section 53B(2) of this Act for appointment as the judge advocate in relation to a court-martial, or

(b) he has, and has had for at least five years, in any Commonwealth country or any colony rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.]

Textual Amendments

F142 S. 47M inserted (2.10.2000) by 2000 c. 4, s. 7(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F143 47N Custody rules. U.K.

(1) The Secretary of State may make rules with respect to proceedings—

(a) on an application under section 47D of this Act;

(b) under section 47G(1) of this Act;

(c) on a review under section 47H(1) of this Act.

(2) Rules under this section may in particular make provision with respect to—

(a) arrangements preliminary to the proceedings;

(b) the representation of the person to whom the proceedings relate;

(c) the admissibility of evidence;

(d) procuring the attendance of witnesses;

(e) the immunities and privileges of witnesses;

(f) the administration of oaths;

(g) circumstances in which a review under section 47H(1) of this Act may be carried out without a hearing;

(h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 47D(2)(b), 47G(1) or 47L(7)(b) or (8)(b) of this Act for a person to be brought before a judicial officer or judge advocate;

(i) the appointment of persons to discharge administrative functions under the rules.

(3) Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F143 S. 47N inserted (2.10.2000) by 2000 c. 4, s. 8(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

Modifications etc. (not altering text)

C13 S. 47N modified (4.9.2000) by S.I. 2000/2366, art. 3, Sch. para. 7 (with Sch. para. 15)

JurisdictionF459 U.K.

48 Jurisdiction of courts-martial. U.K.

(1) Subject to the provisions of this section, any offence under Part I of this Act may be tried and punished by court-martial; and a court-martial shall have jurisdiction to try any such offence whether committed within the United Kingdom or elsewhere.

(2) A person shall not be tried by court-martial by virtue of section forty-two of this Act for a civil offence of treason, murder, manslaughter, treason-felony or rape [F144 or genocide][F145 or an offence under section 1 of the M10 Biological Weapons Act 1974][F146 or an offence under section 2 or 11 of the Chemical Weapons Act 1996]committed on shore within the United Kingdom; and for the purposes of this subsection an offence of murder or manslaughter [F144 or an offence of genocide consisting of the killing of any person] shall be deemed to have been committed at the place of the commission of the act or the occurrence of the neglect which caused the death, irrespective of the place of the death. [F147 In this subsection the references to murder shall apply also to aiding, abetting, counselling or procuring suicide].

(3) Except as provided by subsection (3) of section thirty-eight of this Act, a person who commits an offence under that section in relation to a court-martial shall not be dealt with by that court for that offence.

Textual Amendments

F144 Words inserted by Genocide Act 1969 (c. 12), s. 1(7)(b)

F145 Words inserted by Biological Weapons Act 1974 (c. 6), s. 5(2)

F146 Words in s. 48(2) inserted (16.9.1996) by 1996 c. 6, s. 35(c) (with s. 37); S.I. 1996/2054, art. 2

F147 Words added by Suicide Act 1961 (c. 60), Sch. 1 Pt. II

Marginal Citations

M10 1974 c. 6.

F148 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F148 S. 49 repealed (1.4.1997 with savings) by 1996 c. 46, ss. 5, 35(2), Sch. 1 para. 12, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

F149 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F149 S. 50 repealed (1.4.1997 with savings) by 1996 c. 46, ss. 8, 35(2), Sch. 1 para. 12, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

51 Jurisdiction to try offenders no longer subject to this Act. U.K.

(1) Subject to the provisions of . . . F150 the next following section, a person who has ceased to be subject to this Act may be tried under this Part of this Act for any offence committed while subject to this Act, and may for that purpose be arrested and kept in custody, as if he had not ceased to be subject thereto.

(2) . . . F151

Textual Amendments

F150 Words repealed by Armed Forces Act 1981 (c. 55), Sch. 5 Pt. II

F151 S. 51(2) repealed by Armed Forces Act 1981 (c. 55), Sch. 5 Pt. II

52 Limitation of time for trial. U.K.

[F152 (1) Where by virtue of any enactment proceedings on indictment for any civil offence must be brought within a limited period, a person shall not be tried for that offence under section 42 of this Act unless the trial is begun within that period.]

(2) Without prejudice to the foregoing subsection, but subject to the provisions of subsection (3) of this section, a person shall not be tried by virtue of section fifty-one of this Act for an offence committed while subject to this Act unless the trial is begun within three months [F153 or, in the case of trial by court-martial, six months] after he ceased to be subject thereto.

[F154 (3) [F155 Subsection (2)] above shall not apply to an offence of mutiny or desertion; [F155 or, without prejudice to subsection (1) above, to a civil offence punishable under section 42 of this Act where the civil offence is alleged to have been committed outside the United Kingdom and the Attorney General consents to the trial.]]

Textual Amendments

F152 S. 52(1) substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 7(2)(6)

F153 Words inserted by Armed Forces Act 1981 (c. 55), s. 6(6)

F154 S. 52(3) substituted by Armed Forces Act 1971 (c. 33), ss. 41, 78(4)

F155 Words substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 7(3)(6)

F156 52A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F156 S. 52A repealed (1.4.1997 with savings) by 1996 c. 46, ss. 8, 35(2), Sch. 1 para. 12, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

[F157 Investigation and summary trial]F459 U.K.

Textual Amendments

F157 Crossheading before s. 52B inserted (1.4.1997) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

[F158 52B Investigation of charges by commanding officer U.K.

(1) An allegation that a person subject to this Act (“the accused”) has committed an offence against any provision of this Act shall be reported, in the form of a charge, to his commanding officer.

(2) A commanding officer shall investigate a charge reported to him under subsection (1) above.

(3) If, in the course of investigating a charge, the commanding officer considers it appropriate to do so, he may amend the charge or substitute another charge for it and treat the amended or substituted charge as if that charge had been reported to him under subsection (1) above.

(4) If, in the course of investigating a charge, it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice should be, taken against the accused otherwise than under this Act he may stay further proceedings with respect to the charge.

(5) After investigating a charge, the commanding officer may, subject to subsection (6) below—

(a) dismiss the charge;

(b) refer the charge to higher authority; or

(c) try the accused summarily.

(6) The commanding officer may not try summarily—

(a) any charge against an officer; or

(b) any charge which is not capable of being tried summarily.

(7) For the purposes of this Act, a charge is capable of being tried summarily if it is for an offence triable by court-martial under this Act, other than an offence punishable by sentence of death or an offence of murder.]

Textual Amendments

F158 Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

[F159 52C Powers of higher authority. U.K.

(1) Where a charge is referred to higher authority, the higher authority shall refer the case to the prosecuting authority unless he takes one of the steps mentioned in this section in relation to the charge.

(2) The higher authority may refer the charge back to the commanding officer of the accused with a direction to dismiss it or to stay all further proceedings in relation to it; and the commanding officer shall deal with the charge accordingly.

(3) If the charge is against a rating and is capable of being tried summarily, the higher authority may, subject to subsection (4) below, refer it back to the commanding officer of the accused to be so tried.

(4) If the charge has been referred to the higher authority as a result of an election for court-martial trial, and that election has not been withdrawn with leave, he may not refer the charge back to the commanding officer of the accused to be tried summarily.

(5) This section has effect subject to any power of the higher authority under section 52G(1) below to order a disciplinary court.]

Textual Amendments

F159 Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

[F160 52D Summary trial. U.K.

(1) This section applies where a charge is to be tried summarily.

(2) If the commanding officer considers that, if the charge were proved, he would award a punishment—

(a) in the case of a warrant officer, of disrating, a fine or stoppages;

(b) in the case of any other rating, of dismissal from Her Majesty’s service, detention or disrating,

he shall afford the accused an opportunity of electing court-martial trial.

[F161 (2A) Where in accordance with regulations under section 52F of this Act two or more charges are together to be tried summarily, any election for court-martial trial must relate to all the charges concerned.]]

(3) If the accused [F162 elects court-martial trial] and does not withdraw his election with leave, the commanding officer shall refer the charge to higher authority with a view to the trial of the accused by court-martial.

(4) If a charge has been referred to higher authority as a result of an election for court-martial trial, and that election is withdrawn with leave, the higher authority shall refer the charge back to the commanding officer of the accused to be tried summarily.

(5) If, in the course of trying the charge, the commanding officer considers that it should not be tried summarily, he may refer the charge to higher authority.

(6) If the commanding officer determines that the charge has not been proved, he shall acquit the accused.

(7) If the commanding officer determines that the charge has been proved, he shall record a finding of guilt and award punishment accordingly.

(8) A commanding officer shall not have power on a summary trial to award a sentence of dismissal with disgrace from Her Majesty’s service, a sentence of imprisonment or a sentence of detention for any term exceeding three months.

Textual Amendments

F160 SS. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

F161 S. 52D(2A) inserted (2.10.2000) by 2000 c. 4, s. 11(4); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F162 Words in s. 52D(3) substituted (2.10.2000) by 2000 c. 4, s. 11(5); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F163 52E Commanding officers. U.K.

(1) In this Act “the commanding officer”, in relation to a person charged with [F164 , or in custody in connection with,]] an offence, means the officer in command of the ship or naval establishment to which he belongs at the time of the commission of the offence [F165 , while he is in custody in connection with it] or at the time of its investigation or summary trial.

(2) The Defence Council may by regulations make provision—

(a) enabling the powers conferred by this Act on the commanding officer of [F166 a person charged with, or in custody in connection with, an offence] to be exercised by other persons of such descriptions as may be specified;

(b) with respect to the delegation by the commanding officer, or other person exercising the powers of a commanding officer by virtue of regulations under paragraph (a) above, of any of his powers to any officer not below the rank of lieutenant or corresponding rank.

(3) An officer to whom any powers are delegated by virtue of subsection (2)(b) above shall not have power to award any punishment other than a fine, stoppages or those described in section 43(1)(m) of this Act.

[F167 (3A) Subsection (2)(b) above is without prejudice to section 47F(1)(a) of this Act.]

(4) The reference in subsection (3) above to stoppages does not include a reference to stoppages for personal injury.

Textual Amendments

F163 Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

F164 Words in s. 52E(1) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 8(2)(a); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F165 Words in s. 52E(1) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 8(2)(b); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F166 Words in s. 52E(2)(a) substituted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 8(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F167 S. 52E(3A) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 8(4); S.I. 2000/2366, art. 2 (with Sch. para. 15)

Valid from 28/02/2002

[F168 52EE Officers who may act as appropriate superior authorities U.K.

(1) A person may act as appropriate superior authority in relation to a person charged with an offence if—

(a) he is of or above the rank of commander, and

(b) his rank is at least two ranks higher than that of the accused.

(2) The appropriate superior authority in relation to a person charged with an offence shall be appointed by the higher authority.

(3) For the purposes of subsection (1) above, the holding by any person of any acting rank other than that of commodore is to be disregarded; and in this subsection “acting rank” means rank of any description (however called) such that under Queen’s Regulations a commanding officer has power to order the holder to revert from that rank.]

Textual Amendments

F168 S. 52EE inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 12; S.I. 2002/345, art. 2 (subject to art. 3)

[F169 52F Regulations as to summary trial etc. U.K.

(1) The Defence Council may make regulations with respect to the investigation of charges by commanding officers and summary trial.

(2) Regulations under this section may in particular make provision with respect to—

(a) the reporting of a charge to a commanding officer;

(b) the procedure to be followed by a commanding officer investigating a charge;

(c) the amendment or substitution of charges;

(d) the procedure on summary trial;

(e) limitations on the punishments which may be awarded on summary trial by a specified description of commanding officer;

(f) limitations on the punishments which may be so awarded to a specified description of accused;

(g) requirements for punishments to be approved before taking effect;

[F170 (gg) the procedure for making elections under section 85A(2) of this Act and withdrawing such elections;]]

(h) the information to be provided to a person afforded an opportunity of electing court-martial trial;

(i) the procedure for electing court-martial trial, including any period within which any such election may be made;

(j) the procedure for requesting leave to withdraw an election for court-martial trial and for withdrawing any such election;

(k) who may act as the higher authority.

(3) A regulation under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.

Textual Amendments

F169 Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

F170 S. 52F(2)(gg) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 5; S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F171 The summary appeal court]F459 U.K.

Textual Amendments

F171 S. 52FF and crossheading inserted (2.10.2000) by 2000 c. 4, s. 14(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F172 52FF The summary appeal court. U.K.

(1) There shall be a court (in this Act referred to as “the summary appeal court”) for the purpose of hearing appeals against findings recorded and punishments awarded on summary trial.

(2) The court shall consist of—

(a) judge advocates appointed under section 52FG of this Act, and

(b) officers qualified under section 52FH of this Act to be members of the court.

(3) The court—

(a) may sit in two or more divisions, and

(b) may sit in any place, whether within or outside the United Kingdom.

(4) There shall be a court administration officer for the court, who shall be an officer (or other person) appointed by the Defence Council.

(5) The court shall sit at such times and in such places as may be determined by the court administration officer.

(6) The court administration officer shall perform such other functions as may be prescribed by rules under section 52FP of this Act.

Textual Amendments

F172 S. 52FF and crossheading inserted (2.10.2000) by 2000 c. 4, s. 14(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F173 52FG Judge advocates. U.K.

(1) Judge advocates in relation to the summary appeal court shall be appointed by the Chief Naval Judge Advocate.

(2) No person shall be appointed under this section unless he is qualified under section 53B(2) of this Act for appointment as the judge advocate in relation to a court-martial.]

Textual Amendments

F173 S. 52FG inserted (2.10.2000) by 2000 c. 4, s. 15(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F174 52FH Officers qualified for membership of summary appeal court. U.K.

(1) Subject to subsections (2) and (3) below, an officer is qualified under this section for membership of the summary appeal court if he is a naval officer of or above the rank of lieutenant who has held a commission in any of Her Majesty’s naval, military, or air forces for a period of not less than three years or periods amounting in the aggregate to not less than three years.

(2) Subject to subsection (3) below, rules under section 52FP of this Act may specify circumstances in which any other naval officer or a military or air-force officer is qualified under this section for membership of the court.

(3) The following are not qualified under this section for membership of the court—

(a) the court administration officer,

(b) an officer under the command of the court administration officer,

(c) the prosecuting authority,

(d) any person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990,

(e) an advocate in Scotland or a solicitor who has a right of audience in the Court of Session or the High Court of Justiciary,

(f) a member of the Bar of Northern Ireland,

(g) a person who has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules, or

(h) any person who is, or has at any time during the preceding five years been, a member of the Royal Navy Regulating Branch.

(4) In this section—

• “air-force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;

• “military officer” means an officer belonging to Her Majesty’s military forces and subject to military law; and

• “naval officer” means an officer belonging to Her Majesty’s naval forces and subject to this Act.]

Textual Amendments

F174 S. 52FH inserted (2.10.2000) by 2000 c. 4, s. 16(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F175 52FJ Constitution of summary appeal court for appeals. U.K.

(1) For the purpose of hearing an appeal, the summary appeal court shall consist of—

(a) one of the judge advocates appointed under section 52FG of this Act, and

(b) two officers qualified under section 52FH of this Act for membership of the court.

(2) Subsection (1) above has effect subject to any provision made by virtue of section 52FP of this Act.

(3) The judge advocate for any appeal shall be specified by or on behalf of the Chief Naval Judge Advocate.

(4) The other members of the court for any appeal shall be specified by or on behalf of the court administration officer.

(5) In specifying members of the court under subsection (4) above the person doing so shall ensure that at least one member of the court for any appeal is of or above the rank of commander.

(6) At any sitting of the court, the most senior member of the court at that sitting shall preside.]

Textual Amendments

F175 S. 52FJ inserted (2.10.2000) by 2000 c. 4, s. 17(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F176 52FK Right of appeal. U.K.

(1) Any person in respect of whom—

(a) a charge has been tried summarily, and

(b) a finding of guilt has been recorded,

may appeal to the summary appeal court against the finding or against any punishment awarded (or against both).

(2) Subject to subsection (3) below, any appeal must be brought within the period of fourteen days beginning with the date on which the punishment was awarded (“the initial period”) or within such longer period as the court may (before the end of the initial period) allow.

(3) The court may at any later time give leave for an appeal to be brought.

(4) On any appeal under this section, the respondent shall be the prosecuting authority.]

Textual Amendments

F176 S. 52FK inserted (2.10.2000) by 2000 c. 4, s. 18(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F177 52FL Hearing of appeals. U.K.

(1) An appeal under section 52FK of this Act against a finding shall be by way of a rehearing of the charge.

(2) An appeal under section 52FK of this Act which relates only to the punishment awarded shall be by way of a rehearing in relation to the award of punishment.

(3) Except in such cases as may be prescribed by rules under section 52FP of this Act, appeals shall be heard in open court.

(4) Proceedings of the summary appeal court shall be conducted in accordance with the law of England and Wales.

(5) Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.

(6) Any directions given by the judge advocate shall be binding on the court.]

Textual Amendments

F177 S. 52FL inserted (2.10.2000) by 2000 c. 4, s. 19(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F178 52FM Powers of court. U.K.

(1) On an appeal against a finding of guilt, the summary appeal court—

(a) may confirm or quash the finding, or

(b) in a case where the officer who conducted the summary trial could validly have recorded a finding that another charge had been proved, may substitute for the finding a finding that that other charge has been proved.

(2) Where the court quashes a finding—

(a) the court shall quash any punishment which relates only to that finding (or to that and one or more other findings which are also quashed), and

(b) the court may vary any punishment which relates both to that and one or more other findings so as to award any punishment which—

(i) it would have been within the powers of the officer who conducted the summary trial to award, and

(ii) in the opinion of the court, is no more severe than the punishment originally awarded.

(3) Where, on an appeal against a finding of guilt, the court confirms the finding or substitutes for it a finding that another charge has been proved, the court may vary the punishment awarded at the summary trial so as to award any punishment which—

(a) it would have been within the powers of the officer who conducted the summary trial to award, and

(b) in the opinion of the court, is no more severe than that originally awarded.

(4) On an appeal against the punishment awarded, the court—

(a) may confirm the punishment awarded at the summary trial, or

(b) may substitute any other punishment which—

(i) it would have been within the powers of the officer who conducted the summary trial to award, and

(ii) in the opinion of the court, is no more severe than that originally awarded.

(5) Any punishment awarded by the court shall have effect as if awarded on the day on which the original punishment was awarded on summary trial of the charge.

(6) Any finding substituted or sentence awarded by the court shall be treated for all purposes as having been awarded or made by the officer who conducted the summary trial.]

Textual Amendments

F178 S. 52FM inserted (2.10.2000) by 2000 c. 4, s. 20(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

Modifications etc. (not altering text)

C14 S. 52FM(1)(b) modified (2.10.2000) by S.I. 2000/2370, rule 46(4)

[F179 52FN Making of, and appeals from, decisions of court. U.K.

(1) Subject to section 52FL(5) of this Act, any decision of the summary appeal court when constituted as mentioned in section 52FJ(1) of this Act shall be determined by a majority of the votes of the members of the court.

(2) The person who brought the appeal may question any judgment of the summary appeal court on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the summary appeal court to have a case stated for the opinion of the High Court in England and Wales.]

Textual Amendments

F179 S. 52FN inserted (2.10.2000) by 2000 c. 4, s. 21(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F180 52FP Rules of summary appeal court. U.K.

(1) The Secretary of State may make rules for the purpose of regulating the practice and procedure to be followed in the summary appeal court.

(2) Rules under this section may, in particular, make provision—

(a) as to the practice and procedure of the court in exercising functions preliminary to or incidental to the hearing of appeals under section 52FK of this Act;

(b) as to the bringing and abandonment of appeals;

(c) as to the procedure for applying for leave under section 52FK(2) or (3) of this Act;

(d) as to the procedure for applying for leave, or making a reference, under section 71B(5A) or (5B) of this Act;

(e) as to circumstances in which the jurisdiction of the court may be exercised by a judge advocate appointed under section 52FG of this Act sitting alone;

(f) enabling an uncontested appeal to be determined without a hearing;

(g) as to the convening and constitution of the court to hear any appeal;

(h) as to circumstances in which officers otherwise qualified under section 52FH of this Act are ineligible to hear particular appeals;

(i) enabling the appellant to object to members of the court;

(j) as to the representation of the appellant on the hearing of appeals under section 52FK of this Act and at any preliminary proceedings;

(k) as to the admissibility of evidence;

(l) as to the rehearing of an appeal where any member of the court originally constituted to hear it has been unable to continue hearing the appeal;

(m) as to procuring the attendance of witnesses at the hearing of appeals and at any preliminary proceedings;

(n) as to the administration of oaths;

(o) as to the recording of the proceedings of the court and custody of records of the proceedings;

(p) as to making copies of the records of proceedings available and as to the fees payable for such copies;

(q) as to the procedure for applying to have a case stated under section 52FN(2) of this Act.

(3) Rules under this section may provide for any enactment which relates to the practice or procedure of courts-martial or to the admissibility of evidence in courts-martial to apply in relation to the court with such modifications as may be specified.

(4) Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F180 S. 52FP inserted (2.10.2000) by 2000 c. 4, s. 22(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F181 52FQ Administration of oaths to members of summary appeal court. U.K.

(1) Every member of the summary appeal court shall, before first sitting as a member of the court, have administered to him by the prescribed person in the prescribed manner an oath in the prescribed form.

(2) In subsection (1) above “prescribed” means prescribed by the Secretary of State by order made by statutory instrument.

(3) An order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F181 S. 52FQ inserted (2.10.2000) by 2000 c. 4, s. 23(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F182 52FR Privileges of witnesses and others. U.K.

A witness before the summary appeal court or any other person whose duty it is to attend on or before the court shall be entitled to the same immunities and privileges as a witness before the High Court in England and Wales.]

Textual Amendments

F182 S. 52FR inserted (2.10.2000) by 2000 c. 4, s. 24(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F183 Disciplinary courts]F459 U.K.

Textual Amendments

F183 Crossheading before s. 52G inserted (1.4.1997) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

[F184 52G Disciplinary courts. U.K.

(1) If an officer of Her Majesty’s naval forces below the rank of commander is charged with an offence to which this section applies at a time when the force to which he belongs is on active service, the higher authority to whom the charge was referred may order a disciplinary court.

(2) A disciplinary court shall have power, subject to the provisions of this section and of any rules made under it, to try and punish the offence accordingly.

(3) This section applies to any offence triable by court-martial under this Act other than an offence under the following provisions—

(a) sections 2 to 4, 6, 9, 10, 23 and 24, section 29(1) so far as relating to public or service property, section 29A, and sections 34 to 37 and 42;

(b) sections 40 and 41, so far as applicable to an offence under any of the provisions mentioned in paragraph (a) of this subsection.

(4) A disciplinary court shall consist of not less than three nor more than five officers, at least one of whom is not below the rank of commander.

(5) An officer shall not be a member of a disciplinary court unless he is an officer of Her Majesty’s naval forces and is subject to this Act.

(6) The officer who orders a disciplinary court shall not be a member of the court.

(7) A disciplinary court shall not have power to award any punishment greater than dismissal from Her Majesty’s service.

(8) The Secretary of State may by statutory instrument make rules as to the assembling, constitution, procedure and practice of disciplinary courts.

(9) Rules under subsection (8) above may apply in relation to disciplinary courts and to proceedings of such courts, with the necessary modifications, any provisions of this Part of this Act or of rules under section 58 of this Act relating to courts-martial and proceedings of courts-martial.]

Textual Amendments

F184 Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

[F185 The prosecuting authorityF459 U.K.

Textual Amendments

F185 Crossheading and ss. 52H-52J inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 16; S.I. 1997/304, art. 2 (with art. 3)

F186 52H The prosecuting authority. U.K.

(1) Her Majesty may appoint a qualified officer of Her naval forces to be the prosecuting authority for the Royal Navy; and in this Act “the prosecuting authority” means the officer so appointed.

(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is—

(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;.

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

(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least five years’ standing.

Textual Amendments

F186 Ss. 52H-52J inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 16; S.I. 1997/304, art. 2 (with art. 3)

F187 52I Functions of the prosecuting authority. U.K.

(1) This section applies where a case has been referred to the prosecuting authority.

(2) If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall refer the case to the commanding officer of the accused for the preliminary charge to be tried summarily.

(3) In subsection (2) above “the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial.

(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and [F188 (subject to section 52II of this Act)] prefer any such charge.

(5) The prosecuting authority shall, in accordance with rules under section 58 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.

(6) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.

(7) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act—

(a) amend, or substitute another charge or charges for, any charge preferred;

(b) prefer an additional charge, or additional charges, against the accused;

(c) discontinue proceedings on any charge.

(8) The powers mentioned in subsection (7)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.

[F189 (8A) If the case has been referred to the prosecuting authority as a result of an election for court-martial trial, the prosecuting authority may not—

(a) determine under subsection (4) above that a charge different from that in respect of which the election was made is to be preferred, or

(b) exercise any power mentioned in subsection (7)(a) or (b) above in relation to any charge against the accused before the commencement of the trial,

unless the accused has given his written consent or the charge is being referred under section 52II of this Act.]

(9) The prosecuting authority may not exercise any power mentioned in subsection (7)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.

(10) If, before the commencement of the trial of a charge against the accused (“the original charge”), the prosecuting authority exercises the power mentioned in subsection (7)(b) above, he may, in accordance with rules under section 58 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (5) above shall apply with such exceptions and modifications as may be prescribed.

(11) The prosecuting authority may not exercise the power mentioned in subsection (7)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.

[F190 (12) If the prosecuting authority—

(a) decides not to prefer any charge referred to him, or

(b) before the commencement of the trial of any charge preferred by him, discontinues proceedings on that charge,

he may direct that the accused shall not be liable to be tried summarily or by court-martial for the offence charged.]

(13) If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (12) above.

Textual Amendments

F187 Ss. 52H-52J inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 16; S.I. 1997/304, art. 2 (with art. 3)

F188 Words in s. 52I(4) inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 2(1); S.I. 2000/2366, art. 2

F189 S. 52I(8A) inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 2(2); S.I. 2000/2366, art. 2 (with Sch. para. 12)

F190 S. 52I(12) substituted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 2(3); S.I. 2000/2366, art. 2

Modifications etc. (not altering text)

C15 S. 52I(2) modified (1.1.2008) by The Courts-Martial (Royal Navy) Rules 2007 (S.I. 2007/3443), rule 5

[F191 52II Cases where charge may be referred back to commanding officer. U.K.

(1) Where—

(a) a case has been referred to the prosecuting authority as a result of an election for court-martial trial, and

(b) the prosecuting authority considers that a charge different from, or additional to, the preliminary charge should be preferred,

the prosecuting authority may refer back to the commanding officer of the accused the charge or charges which the prosecuting authority considers should be preferred.

(2) In subsection (1) above—

(a) “the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial, and

(b) the reference to preferring a charge different from, or additional to, the preliminary charge includes a reference to amending, or substituting another charge for, a charge already preferred.

(3) Where a charge is referred to a commanding officer under subsection (1) above, the commanding officer shall deal with the charge as if it had been reported to him under section 52B(1) of this Act.]

Textual Amendments

F191 S. 52II inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 4; S.I. 2000/2366, art. 2

Valid from 28/02/2002

[F192 52IJ Power of prosecuting authority to advise police forces U.K.

(1) The prosecuting authority may give advice to police forces on all matters relating to offences under this Act (including offences under the Reserve Forces Act 1996 which by virtue of subsection (1) of section 103 of that Act are treated for the purposes mentioned in that subsection as being offences under this Act).

(2) In this section “police force” means any of the following—

(a) the Royal Navy Regulating Branch;

(b) the Royal Air Force Police;

(c) the Royal Military Police;

(d) the Ministry of Defence Police;

(e) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(f) the metropolitan police force;

(g) the City of London police force;

(h) any police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967;

(i) the Police Service of Northern Ireland;

(j) the British Transport Police;

(k) the National Crime Squad.]

Textual Amendments

F192 S. 52IJ inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 15; S.I. 2002/345, art. 2 (subject to art. 3)

F193 52J Prosecuting officers. U.K.

(1) The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.

(2) An officer shall not be appointed as a prosecuting officer unless he is—

(a) a person who has a general qualification within the meaning of section 71 of the M11 Courts and Legal Services Act 1990;

(b) an advocate or solicitor in Scotland; or

(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.]

Textual Amendments

F193 Ss. 52H-52J inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 16; S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M11 1990 c. 41.

Constitution of courts-martialF459 U.K.

F194 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F194 S. 53 repealed (1.4.1997 with savings) by 1996 c. 46, ss. 8, 35(2), Sch. 1 Pt. III para. 50, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

[F195 53A Court administration officers. U.K.

In this Act—

• “court administration officer” means an officer (or other person) appointed by the Defence Council to order courts-martial and perform such other functions as may be prescribed by rules under section 58 of this Act; and

• “the court administration officer”, in relation to a court-martial, means the court administration officer who ordered the court-martial and includes his successor or any person for the time being exercising his or his successor’s functions.]

Textual Amendments

F195 Ss. 53A, 53B and 53C inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 51; S.I. 1997/304, art. 2 (with art. 3)

F196 53B Judge advocates. U.K.

(1) In this Act “the judge advocate”, in relation to a court-martial, means the judge advocate appointed by or on behalf of the Chief Naval Judge Advocate to be a member of the court-martial.

(2) No person shall be appointed as the judge advocate unless he is—

(a) a person who has a five year general qualification within the meaning of section 71 of the M12 Courts and Legal Services Act 1990;

(b) an advocate in Scotland of at least five years’ standing or a solicitor who has had a right of audience in the Court of Session or the High Court of Justiciary for at least five years; or

(c) a member of the Bar of Northern Ireland of at least five years’ standing.

(3) Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.

(4) Any directions given by the judge advocate shall be binding on the court.

Textual Amendments

F196 Ss. 53A, 53B and 53C inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 51; S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M12 1990 c. 41.

F197 53C Ordering of courts-martial. U.K.

(1) On being notified by the prosecuting authority of the charge preferred, a court administration officer shall order a court-martial.

(2) The order assembling the court-martial shall specify—

(a) the date, time and place at which the court-martial is to sit;

(b) the officers who are to be members of the court-martial;

(c) which of those officers is to be president of the court-martial;

(d) any other officers appointed for the purpose of filling vacancies,

and shall state that a judge advocate appointed by or on behalf of the Chief Naval Judge Advocate is to be a member of the court-martial.

(3) At any time before the commencement of the trial, the court administration officer may, in accordance with rules under section 58 of this Act, amend or withdraw the order assembling the court-martial.

(4) The following shall not be eligible to be members of a court-martial for the trial of a charge—

(a) the court administration officer;

(b) an officer who at any time between the date on which the preliminary charge was reported to the commanding officer of the accused and the date of the trial has been the commanding officer of the accused;

(c) the higher authority to whom the preliminary charge against the accused was referred;

(d) any other officer who has investigated the subject matter of the charge against the accused;

(e) any other officer who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused.

(5) In subsection (4) above “the preliminary charge” means the charge referred to higher authority by the commanding officer of the accused.

Textual Amendments

F197 Ss. 53A, 53B and 53C inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 51; S.I. 1997/304, art. 2 (with art. 3)

[F198 54 Composition of courts-martial. U.K.

(1) A court-martial shall consist of the president, not less than four nor more than eight other naval officers and the judge advocate.

(2) An officer shall not be appointed a member of a court-martial unless he is of or above the rank of lieutenant and he has been an officer of any of Her Majesty’s naval, military or air forces for a period of not less than three years or for periods amounting in the aggregate to not less than three years.

(3) The officers appointed members of a court-martial shall not all belong to the same ship or naval establishment.

(4) The president of a court-martial shall not be below the rank of captain, and in the case of a court-martial for the trial of an officer of flag rank shall be an officer of flag rank.

(5) A court-martial for the trial of an officer of flag rank shall not include any member below the rank of captain.

(6) A court-martial for the trial of a commodore or captain shall not include any member below the rank of commander.

(7) A court-martial for the trial of a commander shall include at least two members, in addition to the president, who are not below the rank of commander.

(8) If, in the opinion of the court administration officer, the necessary number of naval officers having suitable qualifications is not, with due regard to the public service, available, he may appoint as any member of the court (but not as its president) any military or air-force officer of corresponding rank to that required for a naval officer.

(9) In this section—

• “air-force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;

• “military officer” means an officer belonging to Her Majesty’s military forces and subject to military law; and

• “naval officer” means an officer belonging to Her Majesty’s naval forces and subject to this Act.]

Textual Amendments

F198 S. 54 substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 52; S.I. 1997/304, art. 2 (with art. 3)

F199 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F199 S. 55 repealed (1.4.1997 with savings) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 53, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

56 Place and time of sittings of courts-martial. U.K.

(1) A court-martial shall be held on board such of Her Majesty’s ships or vessels, or at such premises on shore, whether within or out of the United Kingdom, as may be [F200 specified in the order assembling the court].

(2) A court-martial may, if it appears to the court to be expedient in the interests of justice, be adjourned, either generally or for the purpose of any part of the proceedings, to any other ship, vessel or place F201 . . ..

(3) Without prejudice to the provisions of the last foregoing subsection, a court-martial may, if it appears to the court that an adjournment is desirable for any reason, be adjourned for such period as the court thinks fit:

Provided that except with the consent of the accused and the [F202 prosecuting authority] the period for which the court may be adjourned under this subsection shall not on any occasion exceed six days.

(4) Subject to the provisions of this section, a court-martial shall, unless prevented by weather or other unavoidable cause, sit from day to day (with the exception of Sundays) until the court has arrived at a finding and, in the case of a conviction, until sentence is pronounced.

Textual Amendments

F200 words in s. 56(1) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 54(2); S.I. 1997/304, art. 2 (with art. 3)

F201 Words in s. 56(2) repealed (1.4.1997 with savings) by 1996 c. 46, s. 5, 35(2), Sch. 1 Pt. III para. 54(3), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

F202 Words in s. 56(3) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 PT. III para. 54(4); S.I. 1997/304, art. 2 (with art. 3)

[F203 56A Dissolution of courts-martial. U.K.

(1) Where, before the commencement of the trial, it appears to the court administration officer necessary or expedient in the interests of the administration of justice that a court-martial be dissolved, he may by order dissolve the court-martial.

(2) Where, after the commencement of the trial, it appears to the judge advocate necessary or expedient in the interests of the administration of justice that a court-martial be dissolved, he may by order dissolve the court-martial.

(3) If after the commencement of the trial the president dies or is otherwise unable to attend, the court-martial shall be dissolved.

(4) Where a court-martial is dissolved the accused may be tried by another court.]

Textual Amendments

F203 S. 56A inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 55; S.I. 1997/304, art. 2 (with art. 3)

57 Quorum. U.K.

F204 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The proceedings of a court-martial shall be valid notwithstanding the absence of one or more of the [F205 officers] other than the president, so long as the number of [F205 officers] present throughout the proceedings is not reduced below four:

Provided that [F206 an officer appointed] a member of the court who has been absent for any time during a sitting shall take no further part in the proceedings.

F204 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F204 S. 57(1) and (3) repealed (1.4.1997 with savings) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 56(2), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

F205 Word in s. 57(2) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 56(3)(a); S.I. 1997/304, art. 2 (with art. 3)

F206 Words in s. 57(2) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 56(3)(b); S.I. 1997/304, art. 2 (with art. 3)

Proceedings of courts-martialF459 U.K.

[F207 58 Rules. U.K.

(1) The Secretary of State may make rules with respect to—

(a) the investigation, prosecution and trial of, and the awarding of punishment for, offences cognizable by courts-martial;

(b) the review of findings and sentences of courts-martial.

(2) Rules under this section may in particular make provision with respect to—

(a) proceedings preliminary to trials by courts-martial;

(b) the appointment of a judge advocate for any preliminary proceedings;

(c) the delegation by court administration officers of any of their functions;

(d) the ordering and composition of courts-martial;

(e) the sittings, adjournment and dissolution of courts-martial;

(f) the procedure to be followed in trials by courts-martial;

(g) the functions of the clerk of the court and the exercise by him of those functions;

(h) the representation of the accused at trials by courts-martial and any preliminary proceedings;

(i) procuring the attendance of witnesses at such trials and any preliminary proceedings;

(j) enabling a court-martial, in such cases and to such extent as may be prescribed by the rules, to amend a charge which is being tried by the court;

(k) enabling a court-martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;

(l) directing that the powers conferred by section 7 of the M13 Bankers’ Books Evidence Act 1879 (which enables orders to be made for the inspection of bankers’ books for the purposes of legal proceedings) may be exercised for the purposes of a court-martial (whether within or without the United Kingdom) by the commanding officer of the accused or a judge advocate, as well as by the court or a judge within the meaning of that Act;

(m) the forms of orders and other documents to be made for the purposes of any provision of this Act or of rules under this section;

(n) the cases in which, and extent to which, offences may be taken into consideration by a court-martial and the powers of the court in relation to any offences taken into consideration;

(o) the recording of the proceedings of a court-martial;

(p) the procedure to be followed on review of findings and sentences of courts-martial.

(3) Rules made by virtue of paragraph (j) of subsection (2) above shall secure that the power to amend charges is not exercisable in circumstances substantially different from those in which indictments are amendable by a civil court in England, or otherwise than subject to the like conditions, as nearly as circumstances admit, as those subject to which indictments are so amendable.

[F208 (3A) Rules under this section may make provision as to the application of sections 52I and 52II of this Act in relation to cases where an election for court-martial trial relates to two or more charges.]

(4) Rules under this section which are inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.

(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F207 S. 58 substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 57; S.I. 1997.304, art. 2 (with art. 3)

F208 S. 58(3A) inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 6; S.I. 2000/2366, art. 2

Marginal Citations

M13 1879 c. 11.

Valid from 01/01/2008

[F209 58A Preliminary hearings as to plea U.K.

(1) Subsections (2) to (4) apply in relation to a charge against a person (“the accused”) preferred by the prosecuting authority.

(2) The accused shall be arraigned at a hearing before a judge advocate.

(3) That hearing may take place at any time before the time when the court-martial that is to try the charge first sits.

(4) The arraignment is to be treated as having occurred before the court-martial.

(5) Rules under section 58 may make provision for and in connection with the making of orders and rulings by a judge advocate at a hearing at which the accused is arraigned, including in particular—

(a) provision corresponding to any provision of, or that may be made by virtue of, sections 31, 33, 34 and 37 of the Criminal Procedure and Investigations Act 1996, subject to such modifications as the Secretary of State considers appropriate;

(b) provision for the variation or discharge of such orders and rulings.

(6) The reference in subsection (1) to a charge preferred by the prosecuting authority includes—

(a) a charge substituted by the prosecuting authority; and

(b) where a charge is amended by the prosecuting authority before the accused is arraigned in respect of it, the charge as so amended.

(7) Nothing in this section applies in relation to a charge preferred or substituted after the time when the court-martial first sits.]

Textual Amendments

F209 S. 58A inserted (1.1.2008) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 34; S.I. 2007/2913, art. 3

59 Challenge by accused. U.K.

(1) Before the [F210 officers appointed] members of a court-martial are sworn, the names of the [F211 members of] the court shall be read over in the presence of the accused, and he shall be asked whether he objects to [F211 any of those members].

(2) Every objection made by the accused in respect of any [F212 member] shall be [F213 determined by the judge advocate].

[F214 (3) If an objection to the president is allowed, the court shall be dissolved.]

(4) If [F215 an objection to any other officer appointed a member of the court is allowed], the member objected to shall retire, and the vacancy shall be filled by the first officer [F216 appointed] as a spare member in accordance with the provisions of [F217 section 53C] of this Act who is qualified to be and is not already a member of the court.

[F218 (4A) If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Chief Naval Judge Advocate.]

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) After the [F219 officers appointed] members of a court-martial have been duly sworn, no question as to the constitution of the court shall be raised in the proceedings, but without prejudice to any power of the Courts-Martial Appeal Court or of [F220 the [F221 reviewing authority]] in a case in which it appears that a substantial miscarriage of justice has occurred by reason of the court not having been duly constituted.

Textual Amendments

F210 Words in s. 59(1) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(1)(2)(a); S.I. 1997/304, art. 2 (with art. 3)

F211 Words in s. 59(1) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(2); S.I. 1997/304, art. 2 (with art. 3)

F212 Word in s. 59(2) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(3)(a); S.I. 1997/304, art. 2 (with art. 3)

F213 Words in s. 59(2) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(3)(b); S.I. 1997/304, art. 2 (with art. 3)

F214 S. 59(3) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(4); S.I. 1997/304, art. 2 (with art. 3)

F215 S. 59(4): it is provided (1.4.1997 with savings) that for the words from "objection" to "the member" there shall be substituted the words "an objection to any other officer appointed a member of the court is allowed" by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(5)(a); S.I. 1997/304, art. 2 (with art. 3) [Editorial note: it is thought that it was not the drafter's intention to remove the words "the member"]

F216 Word in s. 59(4) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(5)(b); S.I. 1997/304, art. 2 (with art. 3)

F217 Words in s. 59(4) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(5)(c); S.I. 1997/304, art. 2 (with art. 3)

F218 S. 59(4A) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(6); S.I. 1997/304, art. 2 (with art. 3)

F219 Words in s. 59(6) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(8)(a); S.I. 1997/304, art. 2 (with art. 3)

F220 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F221 Words in s. 59(6) substituted (1.4.1997 with savings) by virtue of 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(8)(b); S.I. 1997/304, art. 2 (with art. 3)

60 Administration of oaths. U.K.

[F222 (1) An oath shall be administered separately to each member of a court-martial, to the clerk of the court and any officer or other person in attendance for instruction, and to any person appointed to attend as interpreter.]

[F223 F224 (2) A witness before a court-martial—

(a) shall be examined on oath if he has attained the age of fourteen; and

(b) shall give evidence unsworn if he is under that age.

(3) Unsworn evidence admitted by virtue of subsection (2)(b) above may corroborate evidence (sworn or unsworn) given by any other person.]

[F225 (3A) Unsworn evidence admitted by virtue of subsection (3) above may corroborate evidence (sworn or unsworn) given by any other person.]

(4) A person shall be permitted to make a solemn affirmation instead of taking an oath under this section—

(a) if he objects to being sworn, F226 . . .; or

(b) if it is not reasonably practicable to administer an oath to him in the manner appropriate to his religious belief.

(5) An oath or affirmation required to be administered under this section shall be in such form, and shall be administered at such time, by such person and in such manner, as may be prescribed by [F227 rules] under section fifty-eight of this Act.

[F228 (6) A person who may be permitted under this section to make his solemn affirmation may also be required to do so, and for the purposes of this section “reasonably practicable” means reasonably practicable without inconvenience or delay.]

Textual Amendments

F222 S. 60(1) substituted (1.4.1997) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 59(2); S.I. 1997/304, art. 2 (with art. 3)

F223 S. 60(2)(3) repealed (1.4.2000) by 1999 c. 23, ss. 67, 68(3), Sch. 6 (with Sch. 7 para. 5(2)); S.I. 1999/3427, art. 3

F224 S. 60(2)(3) substituted (1.10.1992 for E.W.) by Criminal Justice Act 1991 (c. 53), ss. 71, 102(2)(8), Sch. 9 para. 7; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2

F225 S. 60(3A) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 26(1), Sch. 2 para. 3(2)(b); S.I. 1991/2719, art. 2 and repealed (1.10.1992 for E.W.) by Criminal Justice Act 1991 (c. 53), ss. 101(2), 102(2)(8), Sch. 13; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2

F226 Words repealed by Administration of Justice Act 1977 (c. 38) Sch. 5 Pt. II

F227 Word in s. 60(5) substituted (1.4.1997) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 59(3); S.I. 1997/304, art. 2 (with art. 3)

F228 S. 60(6) added by Oaths Act 1961 (c. 21), s. 1; saved by Oaths Act 1978 (c. 19), s. 7(4)

61 Courts-martial to sit in open court. U.K.

(1) Subject to the provisions of this section and to any provisions of General Orders under section fifty-eight of this Act with respect to the deliberations of the court upon their finding and sentence or upon other matters specified in those Orders, a court-martial shall sit in open court and in the presence of the accused.

(2) It is hereby declared that a court-martial has the like power to order the exclusion of the public from its proceedings as a civil court; and without prejudice to any such power, a court-martial may order that, subject to such exceptions, if any, as the court may specify, the public shall be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement made in the course of the proceedings or of that part of the proceedings, as the case may be, might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy.

[F229 (3) A court-martial shall sit in closed court while deliberating on their finding and sentence on any charge.

(4) A court-martial may sit in closed court on any other deliberation amongst the members.

(5) Where a court-martial sits in closed court no person shall be present except the members of the court and such other persons as may be prescribed by rules under section 58 of this Act.

(6) The judge advocate shall not be present while the other members of the court are deliberating on their finding on any charge.

(7) Any ruling or direction of the judge advocate on a question of law (including a question of procedure or practice) shall be given in open court.

(8) The judge advocate may determine, and give rulings on, questions of law (including questions of procedure and practice) in the absence of the other members of the court.]

Textual Amendments

F229 S. 61(3)-(8) added (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 60; S.I. 1997/304, art. 2 (with art. 3)

62 Finding and sentence. U.K.

(1) Subject to the provisions of this section, [F230 the finding of a court-martial and any sentence awarded] shall be determined by a majority of the votes of the members of the court.

[F231 (1A) The judge advocate shall not be entitled to vote on the finding.]

(2) In the case of an equality of votes on the finding, the court shall acquit the accused.

(3) Without prejudice to the provisions of section sixty-one of this Act, the finding of a court-martial on each charge, and any sentence of the court, together with any recommendation to mercy [F232 and any reasons for the sentence], shall be announced in open court.

(4) A finding of guilty where the only punishment which the court can award is death shall not have effect unless it is reached with the concurrence of all the members of the court [F233 entitled to vote on the finding]; and where there is no such concurrence, but a majority of [F234 those members] of the court are in favour of such a finding, the court shall be dissolved and the accused may be tried by another court.

(5) Where the accused is found guilty and the court has power to sentence him either to death or to some less punishment, sentence of death shall not be passed without the concurrence of all the members of the court.

Textual Amendments

F230 Words in s. 62(1) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 61(2); S.I. 1997/304, art. 2 (with art. 3)

F231 S. 62(1A) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 61(3); S.I. 1997/304, art. 2 (with art. 3)

F232 Words in s. 62(3) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 61(4); S.I. 1997/304, art. 2 (with art. 3)

F233 Words in s. 62(4) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 61(5)(a); S.I. 1997/304, art. 2 (with art. 3)

F234 Words in s. 62(4) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 61(5)(b); S.I. 1997/304, art. 2 (with art. 3)

[F235 62ZA Powers of court-martial where accused elected court-martial trial. U.K.

(1) Where a court-martial tries a person in pursuance of an election for court-martial trial, the court shall not award any punishment which could not have been awarded by the officer who would have tried the preliminary charge summarily if the election had not been made.

(2) In subsection (1) above, “the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial.

(3) Where regulations under section 52F of this Act would have prevented a punishment of a particular description awarded by the officer from taking effect without the approval of another person, it shall be assumed for the purposes of subsection (1) above that the approval would have been obtained.

(4) For the purposes of this section a court-martial is not to be regarded as trying a person in pursuance of an election for court-martial trial if, since the election was made, the prosecuting authority has referred the charge back to the commanding officer under section 52II of this Act.]

Textual Amendments

F235 S. 62ZA inserted (2.10.2000) by 2000 c. 4, s. 12(3); S.I. 2000/2366, art. 2

F236 63 Special finding of insane at time of trial or offence. U.K.

(1) Where, on the trial of any person by court-martial, it appears to the court—

(a) that the accused is . . . F237 unfit to stand his trial; or

(b) that the accused did the act or made the omission charged, but was insane at the time when the act was done or the omission made so as not to be responsible according to law for his actions.

the court shall so find, and shall order him to be kept in custody until effect is given to the directions of [F238 the Defence Council]. [F239 For purposes of this subsection “unfit to stand his trial” means under any disability such as apart from the M14 Criminal Procedure (Insanity) Act 1964 would constitute a bar to a trial on indictment in England or Wales.]

(2) In the case of any such finding, [F238 the Defence Council] may give orders for the safe custody of the accused during Her Majesty’s pleasure in such place and manner as they think fit.

[F240 (3) Where on the trial of a person by court martial the question arises (at the instance of the defence or otherwise) whether the accused is unfit to stand his trial, the following provisions shall have effect:—

(a) the court, if having regard to the nature of the supposed disability the court is of opinion that it is expedient to do so and in the interests of the accused, may postpone consideration of the question until any time up to the opening of the case for the defence, and if before the question falls to be determined the court finds the accused not guilty of the charge or each of the charges on which he is being tried, the question shall not be determined;

(b) subject to paragraph (a) above, the question shall be determined as soon as it arises;

(c) where the accused is found unfit to stand his trial, the trial shall not proceed or further proceed.]

Textual Amendments

F236 Ss. 62A-63D and preceding cross-heading substituted (31.3.2005) for s. 63 by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 26, 60, Sch. 3 para. 3; S.I. 2005/579, art. 3(b)

F237 Words repealed by Criminal Procedure (Insanity) Act 1964 (c. 84), s. 8(3) proviso (c), Sch. 2 Pt. II

F238 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F239 Words added by Criminal Procedure (Insanity) Act 1964 (c. 84), s. 8(3) proviso (c), Sch. 2 Pt. II

F240 S. 63(3) added by Criminal Procedure (Insanity) Act 1964 (c. 84), s. 8(3) proviso (c), Sch. 2 Pt. II

Modifications etc. (not altering text)

C16 S. 63 extended by Courts-Martial (Appeals) Act 1968 (c. 20), s. 16(2)(3)

Marginal Citations

M14 1964 c. 84.

Prospective

[F241 62A Fitness to stand trial. U.K.

(1) This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial.

(2) For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the M15 Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales.

(3) If, having regard to the nature of the supposed disability, the court is of opinion that it is expedient to do so and in the interests of the accused, it may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.

(4) If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.

(5) Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises.

(6) The question of fitness to stand trial shall be determined by the court and—

(a) where it falls to be determined on the commencement of the trial and the trial proceeds, the accused shall be tried by a court-martial other than that which determined that question;

(b) where it falls to be determined at any later time, it shall be determined by a court-martial other than that by which the accused is being tried.

(7) A court shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.]

Textual Amendments

F241 Ss. 62A-63E substituted (prosp.) for s. 63 by 1996 c. 46, ss. 8, 36(2)(3), Sch. 2 para. 4 (but the said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(2), 60, Sch. 11; S.I. 2005/579, art. 3(ix))

Marginal Citations

M15 1964 c. 84.

Prospective

[F242 63 Findings of insanity. U.K.

(1) Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity.

(2) No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.]

Textual Amendments

F242 Ss. 62A-63E substituted (prosp.) for s. 63 by 1996 c. 46, ss. 8, 36(2)(3), Sch. 2 para. 4 (but the said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(2), 60, Sch. 11; S.I. 2005/579, art. 3(ix))

Prospective

[F243 63A Powers to deal with persons not guilty by reason of insanity or unfit to stand trial. U.K.

(1) This section applies where, on a trial of a person by a court-martial—

(a) the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or

(b) the accused is found not guilty by reason of insanity.

(2) Subject to subsections (3) and (4) below, the court shall make one of the following orders in respect of the accused, namely—

(a) an admission order;

(b) a guardianship order;

(c) a supervision and treatment order; or

(d) an order discharging him absolutely,

as the court thinks most suitable in all the circumstances of the case.

(3) The court may not make an order under subsection (2)(b), (c) or (d) above if the offence to which the finding relates is an offence the sentence for which is fixed by law.

(4) The court shall not make a guardianship order or a supervision and treatment order unless it has power to do so by virtue of section 63C or section 63D below.

(5) An order under subsection (2)(a), (b) or (c) above shall be treated as if it had been made by a civil court in England and Wales, Scotland or Northern Ireland, as the court may direct, and the appropriate mental health legislation shall apply accordingly with such modifications as may be prescribed.]

Textual Amendments

F243 Ss. 62A-63E substituted (prosp.) for s. 63 by 1996 c. 46, ss. 8, 36(2)(3), Sch. 2 para. 4 (but the said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(2), 60, Sch. 11; S.I. 2005/579, art. 3(ix))

Prospective

[F244 63B Admission orders. U.K.

(1) In this Act “admission order” means an order that the person in respect of whom it is made be admitted, in accordance with regulations under subsection (3) below, to such hospital as may be specified by the Secretary of State.

(2) Where an admission order is made by a court-martial, the court may, in such circumstances as may be prescribed, direct the accused to be treated as if an order restricting his discharge had been made under the appropriate mental health legislation, either without limit of time or (if a civil court would have been permitted to do so under the legislation concerned) during such period as may be specified in the direction.

(3) The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an admission order has been made.

(4) Regulations under subsection (3) above may in particular make provision—

(a) for a person in respect of whom an admission order has been made to be conveyed to, and detained in, a place of safety pending his admission to the hospital;

(b) for the period within which such a person is to be admitted to the hospital;

(c) for the appropriate mental health legislation to apply, with such modifications as may be prescribed, in relation to admission orders as the legislation concerned applies in relation to hospital orders;

(d) for a person in respect of whom an admission order has been made to be remitted for trial in such circumstances as may be prescribed.

(5) In this section “hospital”, “hospital order” and “place of safety” have the same meanings as in the appropriate mental health legislation.]

Textual Amendments

F244 Ss. 62A-63E substituted (prosp.) for s. 63 by 1996 c. 46, ss. 8, 36(2)(3), Sch. 2 para. 4 (but the said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(2), 60, Sch. 11; S.I. 2005/579, art. 3(ix))

Modifications etc. (not altering text)

C17 S. 63B extended (1.10.1997) by 1997 c. 43, s. 47(4)(a); S.I. 1997/2200, art. 2(1)(i)

Prospective

[F245 63C Guardianship orders. U.K.

(1) In this Act “guardianship order” means an order placing the accused under the guardianship of—

(a) in a case where the order is treated as if it had been made by a civil court in England and Wales, a local social services authority or such other person approved by a local social services authority as may be specified in the order;

(b) in a case where the order is treated as if it had been made by a civil court in Scotland, a local authority or such other person approved by a local authority as may be specified in the order;

(c) in a case where the order is treated as if it had been made by a civil court in Northern Ireland, a Board or an authorised HSS trust or such other person approved by a Board or an authorised HSS trust as may be specified in the order.

(2) In subsection (1) above—

• “authorised HSS trust” and “Board” have the same meanings as in the M16 Mental Health (Northern Ireland) Order 1986;

• “local authority” has the same meaning as in the M17 Mental Health (Scotland) Act 1984; and

• “local social services authority” has the same meaning as in the M18 Mental Health Act 1983.

(3) A court-martial shall not make a guardianship order unless—

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that—

(i) the accused is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and

(ii) the mental disorder is of a nature or degree which warrants his reception into guardianship; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the accused and the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a guardianship order.

(4) A court-martial shall not make a guardianship order unless it is also satisfied that the authority or other person intended to be specified in the order is willing to receive the accused into guardianship.

(5) A guardianship order shall specify the form or forms of mental disorder referred to in subsection (3)(a) above from which, upon the evidence taken into account under that subsection, the accused is found by the court to be suffering; and a guardianship order shall not be made unless the accused is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of those forms of mental disorder.

(6) The appropriate mental health legislation shall apply, with such modifications as may be prescribed, in relation to guardianship orders under this section as it applies to guardianship orders under the legislation concerned.

(7) In this section “mental disorder”, “mental impairment”, “psychopathic disorder” and “severe mental impairment” have the same meanings as in the Mental Health Act 1983.]

Textual Amendments

F245 Ss. 62A-63E substituted (prosp.) for s. 63 by 1996 c. 46, ss. 8, 36(2)(3), Sch. 2 para. 4 (but the said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(2), 60, Sch. 11; S.I. 2005/579, art. 3(ix)

Marginal Citations

M16 S.I. 1986/595 (N.I. 4).

M17 1984 c. 36.

M18 1983 c. 20.

Prospective

[F246 63D Supervision and treatment orders. U.K.

(1) In this Act “supervision and treatment order” means an order requiring the person in respect of whom it is made (“the supervised person”)—

(a) to be under the supervision of a person (“the supervising officer”) specified in the order for a period specified in the order of not more than two years;

(b) to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner at a place specified in the order with a view to the improvement of his mental condition; and

(c) to comply with such other requirements as may be specified in the order.

(2) The Secretary of State may by order direct that subsection (1)(a) above shall be amended by substituting, for the period for the time being specified in that paragraph such other period as may be specified in the order.

(3) A court-martial shall not make a supervision and treatment order unless it is satisfied—

(a) that, having regard to all the circumstances of the case, the making of such an order is the most suitable means of dealing with the accused;

(b) on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved, that the mental condition of the accused—

(i) is such as requires and may be susceptible to treatment; but

(ii) is not such as to warrant the making of an admission order or a guardianship order.

(4) The court shall not make a supervision and treatment order unless it is also satisfied—

(a) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

(b) that arrangements have been made for the treatment intended to be specified in the order (including arrangements for the reception of the accused where he is to be required to submit to treatment as a resident patient).

(5) The Secretary of State may by regulations make further provision in relation to supervision and treatment orders.

(6) Regulations under subsection (5) above may in particular make provision—

(a) as to the procedure to be followed by a court-martial making a supervision and treatment order;

(b) as to the requirements which may be specified in such an order;

(c) as to the descriptions of supervising officer who may be so specified;

(d) for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

(e) for the amendment and revocation of any supervision and treatment order.]

Textual Amendments

F246 Ss. 62A-63E substituted (prosp.) for s. 63 by 1996 c. 46, ss. 8, 36(2)(3), Sch. 2 para. 4 (but the said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(2), 60, Sch. 11; S.I. 2005/579, art. 3(ix))

Prospective

[F247 63E Provisions supplementary to sections 62A to 63D. U.K.

(1) In this section and sections 62A to 63D above—

• “the appropriate mental health legislation” means—

  (a)

  in a case where an order is treated as if it had been made by a civil court in England and Wales, the M19 Mental Health Act 1983;

  (b)

  in a case where an order is treated as if it had been made by a civil court in Scotland, the M20 Mental Health (Scotland) Act 1984 and Part VI of the M21 Criminal Procedure (Scotland) Act 1995;

  (c)

  in a case where an order is treated as if it had been made by a civil court in Northern Ireland, the M22 Mental Health (Northern Ireland) Order 1986;

• “duly approved” means—

  (a)

  approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

  (b)

  approved for the purposes of section 20 or 39 of the Mental Health (Scotland) Act 1984 by a Health Board as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); or

  (c)

  appointed for the purposes of Part II of the Mental Health (Northern Ireland) Order 1986 by the Mental Health Commission for Northern Ireland;

• “prescribed” means prescribed by regulations made by the Secretary of State.

(2) For the purposes of the provisions of sections 62A, 63, 63C and 63D of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.

(3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then—

(a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to him; and

(c) the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

(4) The power of the Secretary of State to make regulations under sections 63A, 63B, 63C and 63D above, and orders under section 63D(2) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F247 Ss. 62A-63E substituted (prosp.) for s. 63 by 1996 c. 46, ss. 8, 36(2)(3), Sch. 2 para. 4 (but the said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(2), 60, Sch. 11; S.I. 2005/579, art. 3(ix))

Marginal Citations

M19 1983 c. 20.

M20 1984 c. 36.

M21 1995 c. 43.

M22 S.I. 1986/595 (N.I. 4).

X1 64 Summoning of witnesses. U.K.

(1) Any person, whether subject to this Act or not, who is required to give evidence before a court-martial may be summoned by notice in writing given by the [F248 court administration officer].

(2) Any person not subject to this Act who attends a court-martial in pursuance of a notice under this section shall be entitled to receive such expenses of his attendance as may be authorised in accordance with regulations made by [F249 the Secretary of State].

Editorial Information

X1 The insertion of the new crossheading "Findings of unfitness to stand trial and insanity" into Pt. II on 31.3.2005 gives rise to a change in the structure of this piece of legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new crossheading.

Textual Amendments

F248 Words in s. 64(1) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 62; S.I. 1997/304, art. 2 (with art. 3)

F249 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

[F250 64A Rules of evidence U.K.

(1) The rules as to the admissibility of evidence to be observed in proceedings before courts-martial shall, subject to Schedule 13 to the M23 Criminal Justice Act 1988 (evidence before courts-martial etc) and to service modifications, be the same as those observed in trials on indictment in England, and no person shall be required in proceedings before a court-martial to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment in England.

(2) In this section “service modifications” means such modifications as the Secretary of State may by regulations made by statutory instrument prescribe, being modifications which appear to him to be necessary or proper for the purposes of proceedings before a court-martial; and it is hereby declared that in this section—

• “rules” includes rules contained in or made by virtue of an enactment; and

• “enactment” includes an enactment contained in an Act passed after this Act.

(3) Regulations under subsection (2) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) A court-martial shall take judicial notice of all matters of notoriety, including all matters within the general service knowledge of the court, and of all other matters of which judicial notice would be taken in a trial on indictment in England.]

Textual Amendments

F250 Ss. 64A-64D inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 63; S.I. 1996/304, art. 2 (with art. 3)

Modifications etc. (not altering text)

C18 S. 64A(1)(4) applied (with modifications) by S.I. 2000/2370, rule 27(a)

Marginal Citations

M23 1988 c. 33.

F251 X2 64B Proofs at courts-martial by written statement U.K.

(1) Without prejudice to section 64A above, section 9 of the M24 Criminal Justice Act 1967 (proof by written statement) shall apply subject to subsection (2) below and to service modifications, for the purposes of proceedings before courts-martial (whether held in the United Kingdom or not) as it applies to proceedings on indictment.

(2) The statements rendered admissible by this section are statements made—

(a) in the United Kingdom by any person, and

(b) outside the United Kingdom by any person who at the time of making the statement was—

(i) a person subject to service law, or

(ii) a person to whom Parts I and II of this Act are applied by section 117 or section 118 of this Act, or to whom Part II of the M25 Army Act 1955 or Part II of the M26 Air Force Act 1955 is applied by section 208A or section 209 of the Army Act 1955 or the Air Force Act 1955 respectively,

and the persons mentioned in this paragraph include persons to whom section 119 of this Act, section 131 of the Army Act 1955 or section 131 of the Air Force Act 1955 apply.

(3) In subsection (1) above “service modifications” means—

(a) modifications made by any regulations under section 12 of the M27 Criminal Justice Act 1967 in force on the coming into force of this section, and

(b) such modifications in the said section 9, as applied by subsection (1) above, as the Secretary of State may by regulations made by statutory instrument prescribe thereafter, being modifications which appear to him to be necessary or proper for the purpose of the operation of that section in relation to proceedings before a court-martial.

(4) Regulations under subsection (3)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) Section 89 of the said Act of 1967 (punishment of making false statements tendered under section 9) shall apply to any statement rendered admissible by this section.

Editorial Information

X2 The insertion of the new crossheading "Findings of unfitness to stand trial and insanity" into Pt. II on 31.3.2005 gives rise to a change in the structure of this piece of legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new crossheading.

Textual Amendments

F251 Ss. 64A-64D inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 63; S.I. 1997/304, art. 2 (with art. 3)

Modifications etc. (not altering text)

C19 S. 64B(1)(2)(5) applied (with modifications) by S.I. 2000/2370, rule. 27(b)

Marginal Citations

M24 1967 c. 80.

M25 1955 c. 18.

M26 1955 c. 19.

M27 1967 c. 80.

F252 X3 64C Proof of service facts and records. U.K.

(1) This section applies with respect to proceedings before a court-martial.

(2) A letter, return or other document stating that any person—

(a) was or was not serving at any specified time or during any specified period in any part of Her Majesty’s forces;

(b) was discharged from any part of those forces at or before any specified time;

(c) held or did not hold at any specified time any specified rank or appointment in any of those forces;

(d) had at or before any specified time been attached, posted or transferred to any part of those forces;

(e) at any specified time or during any specified time was or was not serving or held or did not hold any rank or appointment in any particular country or place; or

(f) was or was not at any specified time authorised to use or wear any decoration, badge or emblem;

shall if purporting to be issued by or on behalf of the Defence Council or by a person authorised by them, be evidence of the matter stated in the document.

(3) A record—

(a) made in any service record in pursuance of any Act or of Queen’s Regulations, or otherwise in pursuance of naval duty; and

(b) purporting to be signed by the commanding officer or by any person whose duty it was to make or keep the records,

may be received without formal proof in all trials under this Act as prima facie evidence of the record.

(4) A copy of a record (including the signature thereto) such as is mentioned in subsection (3) above, purporting to be certified to be a true copy by a person stated in the certificate to have the custody of the record, may be received without formal proof in all trials under this Act as prima facie evidence of the record.

(5) A document purporting to be issued by order of the Defence Council and to contain instructions given or regulations made by the Defence Council shall be evidence of the giving of the instructions or making of the regulations and of their contents.

(6) A certificate purporting to be issued by or on behalf of the Defence Council or by a person authorised by them, and stating—

(a) that a decoration of a description specified in, or as annexed to, the certificate is a military, naval or air force decoration; or

(b) that a badge or emblem of a description specified in, or as annexed to, the certificate is one supplied or authorised by the Defence Council;

shall be evidence of the matters stated in the certificate.

(7) A certificate purporting to be signed by a person’s commanding officer or any officer authorised by him to give the certificate, and stating the contents of, or of any part of, standing orders or other routine orders of a continuing nature made for—

(a) any ship, train or aircraft;

(b) any formation or unit or body of Her Majesty’s forces; or

(c) any command or other area, or place;

shall in proceedings against that person be evidence of the matters stated in the certificate.

(8) Any document which would be evidence in any proceedings under the M28 Army Act 1955 or the M29 Air Force Act 1955 shall in like manner, subject to the like conditions, and for the like purposes, be evidence in a court-martial under this Act.

Editorial Information

X3 The insertion of the new crossheading "Findings of unfitness to stand trial and insanity" into Pt. II on 31.3.2005 gives rise to a change in the structure of this piece of legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new crossheading.

Textual Amendments

F252 Ss. 64A-64D inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 63; S.I. 1997/304, art. 2 (with art. 3)

Modifications etc. (not altering text)

C20 S. 64C applied (with modifications) by S.I. 2000/2370, rule 27(c)

Marginal Citations

M28 1955 c. 18.

M29 1955 c. 19.

F253 X4 64D Privilege of witnesses and others at courts-martial U.K.

A witness before a court-martial or any other person whose duty it is to attend on or before the court shall be entitled to the same immunities and privileges as a witness before the High Court in England.

Editorial Information

X4 The insertion of the new crossheading "Findings of unfitness to stand trial and insanity" into Pt. II on 31.3.2005 gives rise to a change in the structure of this piece of legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new crossheading.

Textual Amendments

F253 Ss. 64A-64D inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 63; S.I. 1997/304, art. 2 (with art. 3)

65 Contempt of court-martial by civilians. U.K.

(1) Subject to the provisions of this section, if any person not subject to this Act (whether within the United Kingdom or elsewhere)—

(a) having been duly summoned to attend as a witness before a court-martial, fails to comply with the summons;

(b) is guilty in relation to a court-martial of any such act or default as is described in paragraphs (b) to (f) of subsection (1) of section thirty-eight of this Act; or

(c) does any other act in relation to a court-martial which, if the court were a court of law having power to commit for contempt, would be punishable as contempt of that court,

the president of the court-martial may certify the offence to any court of law having jurisdiction in the place where it is alleged to have been committed or in the place where the offender is to be found, being a court having power to commit as aforesaid.

(2) The court to which an offence is certified under this section may inquire into the alleged offence and, after hearing any witnesses who may be produced against or on behalf of the person charged therewith, and after hearing any statement that may be offered in defence, deal with him in any manner in which the court could deal with him if he had committed the like offence in or in relation to that court.

(3) A person shall not be dealt with under this section in respect of failure to comply with a summons requiring him to attend as a witness before a court-martial unless any expenses to which he is entitled under this Act in respect of his attendance have been paid or tendered:

Provided that for the purposes of this subsection—

(a) the tender of a warrant or voucher entitling any person to travel free of charge shall be deemed to constitute tender of his expenses in respect of any travelling authorised by the warrant or voucher; and

(b) the tender of a written undertaking on behalf of [F254 the Defence Council] to defray at the trial any other expenses to which such a person may be entitled under this Act in respect of his attendance shall be deemed to constitute tender of those expenses.

(4) Without prejudice to the provisions of [F255 section 52G(9)]of this Act, this section applies in relation to a disciplinary court as it applies in relation to a court-martial.

[F256 (5) References in subsections (1) and (3) above to a court-martial include references to the summary appeal court.]

[F257 (6) References in subsections (1) and (3) above to a court-martial or its president include references to a judicial officer.]

Textual Amendments

F254 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F255 Words in s. 65(4) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. IV para. 87; S.I. 1997/304, art. 2 (with art. 3)

F256 S. 65(5) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 7; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F257 S. 65(6) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 9; S.I. 2000/2366, art. 2

X5 66 Record of proceedings of courts-martial. U.K.

(1) As soon as practicable after the conclusion of a court-martial, the [F258 court administration officer shall transmit the record of the proceedings]to [F259 the Defence Council].

(2) Subject to the provisions of this section, a person who has been charged before a court-martial shall be entitled, on application made to [F259 the Defence Council] within five years after the conclusion of the proceedings before the court-martial, to receive a copy of the record of the proceedings, subject to payment of such fee (if any), not exceeding the cost of making the copy, as may be required by [F259 the Defence Council].

(3) Where a person charged as aforesaid dies within the period of five years mentioned in subsection (2) of this section, his personal representatives, or any person who in the opinion of [F259 the Defence Council] ought to be treated for the purposes of this subsection as his personal representative, shall, on application made to [F259 the Defence Council] within one year after his death, have the like right to receive a copy of the record as that person would have had on application made under that subsection.

[F260 (3A) The right of a person or his representatives to obtain a copy of the record under this section does not extend to so much of the record as relates only to a charge of which he was found not guilty.]

(4) If, on application made in pursuance of this section for a copy of the record of any proceedings, [F259 the Defence Council] certify that it is necessary for reasons of security that the proceedings or any part thereof should not be disclosed, the applicant shall not be entitled to a copy of the proceedings or part to which the certificate relates.

Editorial Information

X5 The insertion of the new crossheading "Findings of unfitness to stand trial and insanity" into Pt. II on 31.3.2005 gives rise to a change in the structure of this piece of legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new crossheading.

Textual Amendments

F258 Words in s. 66(1) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. IV para. 88; S.I. 1997/304, art. 2 (with art. 3)

F259 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F260 S. 66(3A) inserted by Armed Forces Act 1981 (c. 55), s. 7(3)(4) except in relation to a record of proceedings commenced before 1.5.1982

[F261 X6 66A Right of penalised parent or guardian to copy of record of court-martial proceedings. U.K.

(1) Subject to the provisions of this section, where a court-martial imposes a fine on or makes a compensation order against a parent or guardian under paragraph 13 of Schedule 4A to this Act, the parent or guardian shall be entitled, on application made to the Defence Council within five years after the conclusion of the proceedings before the court-martial, to receive a copy of the relevant part of the record of the proceedings, subject to payment of such fee (if any), not exceeding the cost of making the copy, as may be required by the Defence Council.

(2) Where the parent or guardian dies within the period of five years mentioned in subsection (1) of this section, his personal representatives, or any person who in the opinion of the Defence Council ought to be treated for the purposes of this subsection as his personal representative, shall, on application made to the Defence Council within one year after his death, have the like right to receive a copy of the relevant part of the record as that person would have had on application made under that subsection.

(3) In a case where this section applies, any entitlement conferred by subsection (1) or (2) above is in addition to any entitlement conferred by section 66(2) or (3) of this Act.

(4) If, on application made in pursuance of this section for a copy of the record of any proceedings, the Defence Council certify that it is necessary for reasons of security that any part of the proceedings should not be disclosed, the applicant shall not be entitled to a copy of the part to which the certificate relates.

(5) In this section “the relevant part of the record” means so much of the record as relates to compliance with the requirements of the said paragraph 13 or to any matters taken into account by the court in deciding to impose the fine or make the compensation order.]

Editorial Information

X6 The insertion of the new crossheading "Findings of unfitness to stand trial and insanity" into Pt. II on 31.3.2005 gives rise to a change in the structure of this piece of legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new crossheading.

Textual Amendments

F261 S. 66A inserted by Armed Forces Act 1981 (c. 55), s. 8(3)

Valid from 31/03/2005

F459 U.K.

Findings of unfitness to stand trial and insanity

[F262 [F263 62B Finding that the accused did the act or made the omission charged U.K.

(1) This section applies where in accordance with section 62A(6) above it is determined by a judge advocate that the accused is unfit to stand trial.

(2) The trial shall not proceed or further proceed but it shall be determined by the court—

(a) on the evidence (if any) already given in the trial, and

(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence,

whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

(3) If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him.

(4) If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion.

(5) Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection (2) above shall be made by the court-martial by whom he was being tried.]

Textual Amendments

F262 Ss. 62A-63D and preceding cross-heading substituted (31.3.2005) for s. 63 by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 26, 60, Sch. 3 para 3; S.I. 2005/579, art. 3(b)

F263 Ss. 62A-63D and preceding cross-heading substituted (31.3.2005) for s. 63 by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 26, 60, Sch. 3 para. 3; S.I. 2005/579, art. 3(b)

Valid from 01/01/2008

[F264 65A Powers to compel attendance of witnesses] U.K.

(1) Where the appropriate person (as defined by subsection (2) below) is satisfied by evidence on oath—

(a) that a person not subject to this Act who is in the United Kingdom or in any colony is likely to be able to give material evidence or produce any document or other thing likely to be material evidence at a trial by court-martial in the United Kingdom or (as the case may be) in that colony,

(b) that he will not voluntarily attend as a witness or produce the document or other thing, and

(c) that it is probable that a summons requiring him to attend the court to give evidence or to produce the document or other thing would not procure his attendance,

the appropriate person may, instead of issuing a summons requiring that person to attend, issue a warrant to arrest him and bring him before the court-martial at a time and place specified in the warrant.

(2) For the purposes of subsection (1) above the appropriate person is, at any time before the court-martial is convened, a judicial officer and, thereafter, the judge advocate.

(3) Where—

(a) a person not subject to this Act (“the defaulter”) fails to attend a court-martial held in the United Kingdom or any colony in response to a summons requiring him to so attend,

(b) the judge advocate is satisfied by evidence on oath that the defaulter is in the United Kingdom or (as the case may be) the colony and that he is likely to be able to give material evidence or produce any document or other thing likely to be material evidence in the proceedings,

(c) it is proved on oath or in such manner as may be prescribed by rules under section 58 of this Act that the defaulter has been duly served with the summons and that any expenses to which he is entitled by virtue of regulations made by the Defence Council have been paid or tendered (within the meaning of section 65(3) of this Act), and

(d) it appears to the judge advocate that there is no just excuse for the defaulter’s failure to attend,

the judge advocate may issue a warrant to arrest the defaulter and bring him before the court-martial at a time and place specified in the warrant.

(4) A warrant under subsection (1) or (3) above must be addressed to a constable.

(5) Subsections (1) to (4) above apply in relation to proceedings before a judicial officer as they apply in relation to a court-martial, and in their application in relation to such proceedings—

(a) any reference to a court-martial shall be construed as a reference to those proceedings or to the judicial officer (as appropriate);

(b) the reference in subsection (1)(a) above to a trial by court-martial shall be construed as a reference to the proceedings before the judicial officer;

(c) the appropriate person for the purposes of subsection (1) above is (instead of the person mentioned in subsection (2) above) the judicial officer;

(d) for paragraph (c) of subsection (3) above there is substituted—

(c) “it is proved on oath or in such manner as may be prescribed by rules under section 47N of this Act that he has been duly served with the summons and that any expenses to which he is entitled under those rules have been paid or tendered (within the meaning of those rules), and ” and

(e) any reference in that subsection to the judge advocate shall be construed as a reference to the judicial officer.

(6) Subsections (1) to (4) above apply in relation to the summary appeal court as they apply in relation to a court-martial, and in their application in relation to the summary appeal court—

(a) any reference to a court-martial shall be construed as a reference to the summary appeal court;

(b) the reference in subsection (1)(a) above to a trial by court-martial shall be construed as a reference to the hearing of an appeal by the summary appeal court;

(c) the appropriate person for the purposes of subsection (1) above is (instead of the person mentioned in subsection (2) above)—

(i) at any time before the commencement of the hearing by the summary appeal court, any judge advocate appointed under section 52FG of this Act, and

(ii) thereafter, the summary appeal court;

(d) for paragraph (c) of subsection (3) above there is substituted—

(c) it is proved on oath or in such manner as may be prescribed by rules under section 52FP of this Act that he has been duly served with the summons and that any expenses to which he is entitled under those rules have been paid or tendered (within the meaning of those rules), and ; and

(e) any reference in that subsection to the judge advocate shall be construed as a reference to the summary appeal court.]

Textual Amendments

F262 Ss. 62A-63D and preceding cross-heading substituted (31.3.2005) for s. 63 by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 26, 60, Sch. 3 para 3; S.I. 2005/579, art. 3(b)

F264 S. 65A inserted (1.1.2008) by Armed Forces Act 2001 (c. 19), ss. 25(3), 39(2); S.I. 2007/3434, art. 2

Power to convict of mitigated or alternative offenceF459 U.K.

67 Power to convict of mitigated offence. U.K.

Where the punishment for any offence under this Act depends upon the intent with which or the circumstances in which the offender acts, and any person is charged with committing that offence with an intent or in circumstances involving the higher degree of punishment, he may be found guilty of committing that offence without that intent, or in circumstances involving the lower degree of punishment, as the case may be.

68 Power to convict of alternative offence. U.K.

(1) Where a person is charged with an offence under any provision of this Act other than section forty-two, and it is not proved that he committed that offence but is proved that he committed any other such offence, being—

(a) an attempt to commit the offence charged; or

(b) an offence of the same class as the offence charged and not involving greater punishment,

he may be found not guilty of the offence charged but guilty of the said other offence.

(2) Where a person is charged with a civil offence under section forty-two of this Act and it is not proved that he committed that offence but is proved that he committed any other civil offence of which, if he had been tried by a civil court for committing the first-mentioned offence in England, he might have been found guilty, he may be convicted of an offence under the said section forty-two in respect of the commission of that other civil offence.

69 Power to convict of attempt notwithstanding proof of completed offence. U.K.

It is hereby declared that a person charged under this Act with an attempt to commit any offence may be convicted notwithstanding proof that he actually committed that offence.

Review of finding and sentenceF459 U.K.

[F265 70 Review of findings and sentences of courts-martial. U.K.

(1) Where a court-martial has found the accused guilty of any offence, the accused may, before the end of the prescribed period after sentence is passed, present a petition to the Defence Council against finding or sentence or both.

(2) The reviewing authority shall, in accordance with subsections (3) and (4) below, review any finding of guilt made, and sentence passed, by a court-martial.

(3) The review shall (if it does not begin sooner) begin as soon as is practicable after—

(a) in a case where a petition has been presented under this section, the presentation of the petition;

(b) in any other case, the end of the period within which a petition under this section may be presented.

(4) Where an application for leave to appeal to the Courts-Martial Appeal Court against a finding or sentence has been made before the review of the finding or sentence has been completed—

(a) the reviewing authority shall complete the review as soon as is practicable; but

(b) if leave to appeal is granted before the review has been completed, the authority shall cease considering the review.

(5) For the purposes of this Act the reviewing authority is—

(a) the Defence Council; or

(b) any officer to whom all or any of the powers of the Defence Council as reviewing authority may be delegated by the Defence Council.

(6) A sentence of death and the finding of guilty in consequence of which it was passed may not be reviewed by an officer to whom powers are delegated under subsection (5)(b) above.

(7) This section and section 71 of this Act apply to disciplinary courts as they apply to courts-martial.

(8) In this section “prescribed” means prescribed by rules under section 58 of this Act.]

Textual Amendments

F265 S. 70 substituted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 9; S.I. 1997/304, art. 2 (with art. 3)

[F266 71 Powers of the reviewing authority. U.K.

(1) On a review under section 70 of this Act the reviewing authority has the following powers.

(2) In so far as the review is of a finding of guilt, the authority may—

(a) quash that finding and, if the sentence relates only to that finding, quash the sentence passed in consequence of that finding;

(b) substitute a finding mentioned in subsection (3) below if that finding could have been validly made by the court-martial and the authority is of the opinion that the court-martial must have been satisfied of facts which would justify the making of that finding;

and, where another finding is so substituted, the authority may pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to the court-martial on making such a finding as appears proper.

(3) The findings referred to in subsection (2) above are—

(a) any finding of guilt which could have been validly made by the court-martial on the charge before it;

(b) if the court-martial recorded no finding on a charge alternative to a charge on which the court made the finding being reviewed, a finding of guilt on that alternative charge.

(4) In so far as the review is of a sentence, the authority may quash the sentence or substitute a sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) which was open to the court-martial.

(5) In reviewing a sentence, the authority may—

(a) revoke an order made by the court under section 89A(1) of this Act;

(b) remit in whole or part any punishment awarded by the court;

(c) commute any such punishment for one or more punishments provided by this Act, being less than the punishment commuted.

(6) Where it appears to the reviewing authority that the court-martial, in sentencing the accused, exceeded or erroneously exercised its powers to take other offences into consideration, the authority shall (whether or not substituting a different sentence or remitting or commuting punishment) annul the taking into consideration of the other offence or offences in question and any orders dependent thereon; and where the authority does so the offence or offences shall be treated for all purposes as not having been taken into consideration.

(7) Any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment—

(a) shall be treated for all purposes as having been made or passed by the court;

(b) shall be promulgated and shall have effect as from the date of promulgation.]

Textual Amendments

F266 S. 71 substituted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 10; S.I. 1997/304, art. 2 (with art. 3)

[F267 71A Power to authorise retrial. U.K.

(1) The following provisions of the M30 Courts-Martial (Appeals) Act 1968, that is to say,—

section 19,

section 20, and

Parts I and IV of Schedule 1,

power of Courts-Martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by the [F268 reviewing authority] under section 70 of this Act of the findings of a courts-martial as they apply in relation to an appeal to the Courts-Martial Appeal Court.

(2) Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the [F268 reviewing authority]shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.]

Textual Amendments

F267 S. 71A added by Courts-Martial (Appeals) Act 1968 (c. 20), Sch. 4

F268 Words in s. 71A substituted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 11; S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M30 1968 c. 20.

Valid from 28/02/2007

[F269 71AB Scope of section 71AC U.K.

(1) Section 71AC of this Act applies to any case—

(a) which is of a description specified for the purposes of this paragraph in an order made by the Secretary of State, or

(b) in which a sentence is passed by a court-martial on a person—

(i) in respect of an offence against section 42 of this Act which satisfies the condition in subsection (2) below, or

(ii) in respect of two or more offences against that section each of which satisfies that condition.

(2) The condition referred to in subsection (1)(b) above is that the civil offence is—

(a) an offence which would be triable by a civil court in England and Wales only on indictment, or

(b) an offence of a description specified for the purposes of this paragraph in an order made by the Secretary of State.

(3) For the purposes of this section and section 71AC of this Act—

(a) “sentence”, in relation to an offence, includes any order made by a court-martial in dealing with an offender, including an order that no punishment be awarded, and

(b) any reference to a sentence passed by a court-martial is a reference to any such sentence as it has effect following a review under section 70 of this Act of the sentence or the finding to which it relates (and, accordingly, the reference in paragraph (a) above to an order that no punishment be awarded includes a reference to the quashing of a sentence on a review).

(4) The power of the Secretary of State to make an order under subsection (1)(a) or (2)(b) above shall be exercisable by statutory instrument.

(5) A statutory instrument containing an order under subsection (1)(a) or (2)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament]

Textual Amendments

F269 Ss. 71AB, 71AC inserted (28.2.2007) by 2001 c. 19, ss. 21(2), 39(2); S.I. 2007/662, art. 2

Modifications etc. (not altering text)

C21 S. 71AB(1)(a) applies (31.3.2007) by The Courts-Martial (Review of Sentencing) (Categories of Offences) Order 2007 (S.I. 2007/711), art. 2, Sch.

Valid from 28/02/2007

[F270 71AC Review of sentences by Courts-Martial Appeal Court U.K.

(1) If it appears to the Attorney General—

(a) that a sentence passed on a person by a court-martial has been unduly lenient, and

(b) that the case is one to which this section applies,

he may, with the leave of the Courts-Martial Appeal Court, refer the case to them for them to review the sentencing of that person.

(2) On a reference under subsection (1) above the Courts-Martial Appeal Court may—

(a) quash the sentence passed by the court-martial on the person; and

(b) in place of it pass such sentence, being a sentence which would have been open to the court-martial on the findings made against that person, as they think appropriate.

(3) Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that—

(a) the court-martial erred in law as to its powers of sentencing or the reviewing authority so erred as to its powers on a review under section 70 of this Act; or

(b) the sentence passed on the person was not that required by section 42(1B), (1E) or (1G) of this Act.

[F271 (3A) Where a reference under this section relates to an order under subsection (2) of section 269 of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), the Courts-Martial Appeal Court shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time.]

(4) Where the Courts-Martial Appeal Court have concluded their review of a case referred to them under this section, the Attorney General or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceedings to the House of Lords for their opinion, and the House shall consider the point and give their opinion on it accordingly, and either remit the case to the Courts-Martial Appeal Court to be dealt with or deal with it themselves; and section 41(1) of the Courts-Martial (Appeals) Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(5) A reference under subsection (4) above shall be made only with the leave of the Courts-Martial Appeal Court or the House of Lords; and leave shall not be granted unless it is certified by the Courts-Martial Appeal Court that the point of law is of general public importance and it appears to the Courts-Martial Appeal Court or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

(6) For the purpose of dealing with a case under this section the House of Lords may exercise any powers of the Courts-Martial Appeal Court.

(7) A sentence passed by the Courts-Martial Appeal Court or the House of Lords under subsection (2)(b) above shall be treated for the purposes of this Act as a sentence passed by a court-martial.

(8) The Secretary of State may by regulations made by statutory instrument make supplementary provision with respect to references and applications under this section; and the regulations may in particular contain provision equivalent to that made by any provision of Schedule 3 to the Criminal Justice Act 1988 (which contains supplementary provisions relating to reviews under Part 4 of that Act), subject to such modifications as the Secretary of State thinks fit.

(9) A statutory instrument containing regulations under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F270 Ss. 71AB, 71AC inserted (28.2.2007) by 2001 c. 19, ss. 21(2), 39(2); S.I. 2007/662, art. 2

F271 S. 71AC(3A) inserted (18.12.2003) by Criminal Justice Act 2003 (c. 44), ss. 272(2)(c)(3), 336(2)

Modifications etc. (not altering text)

C22 S. 71AC applied (31.3.2007) by The Courts-Martial (Review of Sentencing) (Categories of Offences) Order 2007 (S.I. 2007/711), art. 2, Sch. (with art. 3)

[F272 71B Review of summary findings and awards. U.K.

(1) This section applies where on a summary trial the accused has been found guilty of any offence.

F273 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The finding or any [F274 punishment] awarded (or both) may be reviewed at any F275 . . .time.

(4) A review under this section shall be carried out in accordance with the provisions of Queen’s Regulations.

(5) A review under this section may be carried out by—

(a) the Defence Council;

(b) any naval officer superior in command to the officer who tried the charge summarily;

(c) a flag officer appointed by the Defence Council to carry out the review or any class of review which includes the review.

[F276 (5A) Where—

(a) the period of fourteen days referred to in subsection (2) of section 52FK of this Act has expired, and

(b) no appeal has been brought under that section,

the authority carrying out a review under this section may, with the leave of the summary appeal court, refer the finding or any punishment awarded (or both) to that court to be considered by it as on an appeal.

F276 (5B) Where an appeal has been brought under section 52FK of this Act and it appears to the authority carrying out a review under this section, on consideration of matters appearing to him not to have been brought to the notice of the summary appeal court on the appeal, to be expedient to do so, he may, with the leave of the summary appeal court, refer the finding or any punishment awarded (or both), including any finding or punishment substituted or awarded by the summary appeal court, to that court to be co sidered or reconsidered by that court as on an appeal.

F276 (5C) A reference to the summary appeal court under subsection (5A) or (5B) of this section shall for the purposes of this Act be treated as an appeal brought by the person to whom the finding or punishment relates against the finding or punishment.

F276 (5D) In a case where exceptionally the authority carrying out a review under this section of a finding considers it necessary to do so, the authority may quash that finding and, if the punishment awarded relates only to that finding, quash the punishment awarded in consequence of that finding.

F276 (5E) The powers conferred by subsection (5D) of this section are exercisable whether or not the conditions in subsection (5A)(a) and (b) are satisfied.]

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F277 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F272 S. 71B inserted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 12; S.I. 1997/304, art. 2 (with art. 3)

F273 S. 71B(2) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 10(2), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F274 Word in s. 71B(3) substituted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 20(3)(a); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F275 Word in s. 71B(3) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 20(3)(b), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F276 S. 71B(5A)-(5E) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 20(4); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F277 S. 71B(6)(7) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 20(5), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 15)

Modifications etc. (not altering text)

C23 S. 71B(5A)(5B) modified (2.10.2000) by S.I. 2000/2370, rule 13(7)

F278 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F278 S. 72 repealed (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 13; S.I. 1997/304, art. 2, Sch. (with art. 3)

73 Saving for functions of Judge Advocate of Her Majesty’s Fleet. U.K.

Nothing in this Part of this Act shall prejudice the exercise by the Judge Advocate of Her Majesty’s Fleet of his functions of considering and reporting on the proceedings of courts-martial and disciplinary courts, or any other of his functions in relation to such courts.

Special powers of Admiralty.F459 U.K.

74 Power to dispense with trial of persons confessing to desertion. U.K.

(1) If any rating subject to this Act signs a confession that he is guilty of desertion, [F279 the Defence Council] may by order dispense with his trial for that offence and, if they think fit, impose on him any such forfeiture as could be imposed on conviction of that offence under Part I of this Act.

(2) The powers of [F279 the Defence Council] under this section may be exercised by any flag officer authorised by [F279 the Defence Council] in that behalf, as well as by [F279 the Defence Council.]

Textual Amendments

F279 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

75 Forfeiture of pay and effects of certain absentees. U.K.

(1) If it appears to [F280 the Defence Council] that any person subject to this Act is absent without leave . . . F281 (whether or not he appears to be guilty of desertion), then, without prejudice to any proceedings which may be taken against him in the event of his apprehension or return, [F280 the Defence Council] may by an order containing a statement of his said absence impose on him any such forfeiture as could be imposed on conviction of an offence of desertion under Part I of this Act.

(2) An order under this section for the forfeiture of any property shall be sufficient authority for the sale of that property and for the disposal of the proceeds of sale in accordance with the directions of [F280 the Defence Council]:

Provided that [F280 the Defence Council] may, if they think fit on sufficient cause shown at any time after the making of the order—

(a) remit the forfeiture of any property which has not been sold thereunder; or

(b) pay or dispose of the proceeds of sale of any property sold thereunder to or for the use of the person to whom it belonged or his representatives.

[F282 (3) The powers conferred by this section on the Defence Council may also be exercised in relation to any person by the Commander-in-Chief or flag officer from whose command that person is absent as aforesaid and by any other officer authorised in that behalf by the Defence Council.]

Textual Amendments

F280 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F281 Words repealed by Armed Forces Act 1971 (c. 33), Sch. 4 Pt. II

F282 S. 75(3) substituted by Armed Forces Act 1971 (c. 33), s. 60

76 Restitution or compensation on conviction of larceny, etc. U.K.

(1) Where any person is convicted under this Part of this Act of unlawfully obtaining any property, whether by stealing it, [F283 handling] it, . . . F284 or otherwise, [F285 the Defence Council] may—

(a) if the whole or any part of the property unlawfully obtained is found in the possession of the offender, order the property so found to be repaid or restored to the person appearing to [F285 the Defence Council] to be its owner;

(b) if any property (other than money) appearing to [F285 the Defence Council] to have been obtained by the conversion or exchange of any of the property unlawfully obtained is found as aforesaid, order the property so found to be delivered to the person appearing to [F285 the Defence Council] to be the owner of the property unlawfully obtained;

(c) if and so far as neither the property unlawfully obtained nor property of equivalent value in respect of which an order is made under paragraph (b) of this subsection is found in the possession of the offender, order that the offender be required to pay to the person appearing to [F285 the Defence Council] to be the owner of the property unlawfully obtained such sum as or towards compensation as appears to [F285 the Defence Council] to be just.

[F286 (1A) The Defence Council may also exercise the powers conferred by subsection (1) above where the court has taken an offence mentioned in that subsection into consideration in determining sentence.]

(2) Where a person is convicted as aforesaid and it appears to [F285 the Defence Council] that any of the property unlawfully obtained was taken in exchange from the offender by any other person who did not then know it to have been unlawfully obtained, [F285 the Defence Council] may—

(a) if the whole or any part of the property given in exchange by the said other person is found in the possession of the offender, order that on restitution of the property taken in exchange to the person appearing to [F285 the Defence Council] to be its owner, the property so found be restored to the said other person;

(b) if and so far as the said property is not so found, order that on restitution as aforesaid of the property taken in exchange the offender be required to pay to the said other person such sum as or towards compensation as appears to [F285 the Defence Council] to be just.

(3) Where a person is convicted as aforesaid and it appears to [F285 the Defence Council] that any of the property unlawfully obtained was purchased or taken in pawn from the offender by a person who did not then know it to have been unlawfully obtained, [F285 the Defence Council] may order that on restitution of that property to the person appearing to [F285 the Defence Council] to be its owner the offender be required to pay to the said other person such sum as or towards compensation as appears to [F285 the Defence Council] to be just.

(4) Any sum payable by an offender by way of compensation under this section may be ordered to be paid out of money found in the possession of the offender or by means of deductions from his pay.

(5) . . . F287

(6) Subject to regulations made by [F285 the Defence Council], the powers conferred on [F285 the Defence Council] by the foregoing provisions of this section may be exercised—

(a) where the offender is tried by a court-martial or disciplinary court, by that court, F288 . . .;

(b) where the offender is tried summarily under [F289 section 52D]of this Act, by the officer in command of the ship or establishment to which he belongs,

as well as by [F285 the Defence Council], and references in those provisions to [F285 the Defence Council] shall be construed accordingly.

(7) An order under this section shall not bar the right of any person, other than the offender or a person claiming through him, to recover any property delivered or paid in pursuance of such an order from the person to whom it is delivered or paid.

Textual Amendments

F283 Word substituted by Theft Act 1968 (c. 60), Sch. 2 Pt. II

F284 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F285 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F286 S. 76(1A) added by Armed Forces Act 1976 (c. 52), s. 14, Sch. 7 para. 3(1)

F287 S. 76(5) repealed by Armed Forces Act 1976 (c. 52), Sch. 10

F288 Words in s. 76(6)(a) repealed (1.4.1997 with savings) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. IV para. 89(a), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

F289 Words in s. 76(6)(b) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. IV para. 89(b); S.I. 1997/304, art. 2 (with art. 3)

Modifications etc. (not altering text)

C24 S. 76 modified by Courts-Martial (Appeals) Act 1968 (c. 20), s. 46(1)

77 Effect of appeal against conviction on order for restitution or compensation. U.K.

(1) The operation of any order made under section seventy-six of this Act on conviction by a court-martial or disciplinary court shall be suspended—

(a) in any case, until the expiration of the period prescribed under [F290 Part II of the M31 Courts-Martial (Appeals) Act 1968], as the period within which an application for leave to appeal to the Courts-Martial Appeal Court against [F291 a relevant conviction] must be lodged; and

(b) if such an application is duly lodged, until either the application is finally refused or is withdrawn or the appeal is determined or abandoned;

and where the operation of any such order is suspended under this subsection, the order shall not take effect if the conviction is quashed on appeal.

(2) On any appeal to the Courts-Martial Appeal Court the court may by order annul or vary any order made under the said section seventy-six although [F291 a relevant conviction] in respect of which it was made is not quashed.

(3) Rules of court made under [F290 Part II of the said Act of 1968] may make provision for securing the safe custody, during the period during which the operation of an order is suspended under this section, of the property ordered to be restored or handed over or the money to which the order relates.

(4) Notwithstanding anything in this section, an order under the said section seventy-six shall not, so far as it relates to the delivery of property to the person appearing to be the owner thereof, be suspended if it is certified by [F292 the Defence Council], or by the court or officer by whom the order is made, that the title to the property is not in dispute.

[F293 (5) In this section “relevant conviction” means—

(a) where an order under section 76 above was made as a result of a conviction of such an offence of unlawfully obtaining property as is mentioned in subsection (1) of that section, that conviction; or

(b) where an order under that section was made as a result of such an offence of unlawfully obtaining property having been taken into consideration in determining sentence, the conviction or, if more than one, each conviction in respect of which the said sentence fell to be determined.]

Textual Amendments

F290 Words substituted by Courts-Martial (Appeals) Act 1968 (c. 20), Sch. 4

F291 Words substituted by Armed Forces Act 1976 (c. 52), s. 14, Sch. 7 para. 4(1)

F292 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F293 S. 77(5) added by Armed Forces Act 1976 (c. 52), s. 14, Sch. 7 para. 4(2)

Marginal Citations

M31 1968 c. 20.

Execution of sentence of deathF459 U.K.

78 Confirmation and authority for execution. E+W+S

(1) A sentence of death passed under this Act shall not be carried out until it has been confirmed by [F294 the Defence Council].

(2) Without prejudice to the foregoing subsection, a sentence of death passed under this Act shall not be carried out in any colony except with the authority of the Governor of the colony.

Textual Amendments

F294 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

79 Regulations as to execution. U.K.

(1) [F295 The Secretary of State] may make regulations with respect to the execution of sentences of death under this Act, whether passed in the United Kingdom or elsewhere.

(2) Without prejudice to the generality of the foregoing subsection, regulations under this section may make provision with respect to all or any of the following matters, that is to say—

(a) the manner in which, the person by whom and the country or territory, place and kind of establishment (whether naval or not) where any such sentence is to be executed; and

(b) the custody and treatment of the person under sentence and his removal from one place or establishment to another between the passing and execution of the sentence,

or may authorise such person as may be specified in or determined by or under the regulations to give directions with respect to all or any of those matters.

(3) Regulations made under this section may contain such incidental and supplementary provisions as appear to [F295 the Secretary of State] to be necessary for the purposes of the regulations.

(4) Such provost marshal or other provost officer not below the rank of lieutenant-commander as may be specified in or determined under regulations under this section shall be responsible for the due execution of any sentence of death passed under this Act.

(5) The power of [F295 the Secretary of State] to make regulations under this section shall be exercisable by statutory instrument; and any statutory instrument containing such regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F295 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Modifications etc. (not altering text)

C25 S. 79 amended by Courts-Martial (Appeals) Act 1968 (c. 20), s. 52

80 Execution in civil prison in the United Kingdom. U.K.

(1) A person sentenced to death and committed or transferred to a civil prison in the United Kingdom in pursuance of regulations under section seventy-nine of this Act shall, while in that prison, be confined and otherwise dealt with in the same manner as a person confined therein under a like sentence of a civil court.

(2) The M32 Capital Punishment Amendment Act 1868, . . . F296 , shall apply in relation to the execution in a civil prison of a sentence of death passed under this Act for any offence, but as if for references to the sheriff there were substituted references to the provost marshal or other provost officer responsible for the due execution of the sentence.

Textual Amendments

F296 Words repealed by Murder (Abolition of Death Penalty) Act 1965 (c. 71), Sch.

Marginal Citations

M32 1868 c. 24.

Service of sentence of imprisonment or detentionF459 U.K.

81 Place of imprisonment or detention. U.K.

(1) Any person sentenced under this Act to imprisonment may be confined during the term of the sentence—

(a) in any naval detention quarters;

(b) in any military establishment or air-force establishment within the meaning of Part II of the M33 Army Act 1955, or Part II of the M34 Air Force Act 1955;

(c) in any civil prison in any part of Her Majesty’s dominions;

(d) in any other establishment in which persons may be required to serve sentences of imprisonment passed under the M35 Army Act 1955, or the M36 Air Force Act 1955.

(2) Any person sentenced under this Act to detention may be confined during the term of the sentence—

(a) in any naval detention quarters;

(b) in any such military or air-force establishment as aforesaid, not being a military or air-force prison;

and may, in such cases and subject to such conditions as may be specified by or under regulations made by [F297 the Secretary of State], be temporarily detained in a military or air-force prison or a civil prison for any period not exceeding seven days.

(3) Subject to the foregoing provisions of this section, the place to which a person sentenced under this Act to imprisonment or detention is to be committed may be determined by any of the following authorities, that is to say:—

(a) in any case, [F297 the Defence Council] or the Commander-in-Chief;

(b) where the offender is tried on any foreign station, the senior naval officer present at the place where he is tried;

(c) where the offender is tried by court-martial, the [F298 court-martial by which he is tried];

(d) where the offender is summarily tried under [F298 section 52D] of this Act, the officer by whom he is so tried or the officer in command of the ship or naval establishment to which the offender belongs;

and a committal order made by any such authority shall be sufficient warrant for sending the offender to such place as may be specified therein, there to undergo his sentence according to law, and for detaining him in custody until he reaches that place.

Textual Amendments

F297 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F298 Words in s. 81(3)(c) and (d) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. IV para. 90; S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M33 1955 c. 18.

M34 1955 c. 19.

M35 1955 c. 18.

M36 1955 c. 19.

82 Naval Detention Quarters Rules. U.K.

(1) [F299 The Defence Council] may set apart any premises or vessels under the control of [F299 the Secretary of State], or any parts of such premises or vessels, as naval detention quarters, and [F300 the Secretary of State] may make rules (in this Part of this Act referred to as Naval Detention Quarters Rules) with respect to all or any of the following matters, that is to say—

(a) the provision, classification, regulation and management of naval detention quarters;

(b) the classification, regulation, employment, discipline and control of persons serving sentences of imprisonment or detention passed under this Act in naval detention quarters or otherwise in naval custody;

(c) the removal of such persons from such quarters or custody as aforesaid, either temporarily or by way of transfer to another establishment or form of custody, and their release on the expiration or determination of their term of imprisonment or detention;

(d) the temporary release of such persons on compassionate grounds, the cases in which, periods for which and conditions subject to which they may be allowed out of such quarters or custody as aforesaid, and the remission of part of their sentences F301 . . .;

(e) the appointment, powers and duties of inspectors and visitors and of officers and other members of the staff, of naval detention quarters;

and such rules may apply the provisions of [F302 the Coroners Acts 1887 to 1926][F302 the Coroners Act 1988], to naval detention quarters as those provisions apply in relation to prisons.

(2) Naval Detention Quarters Rules shall not authorise the infliction of corporal punishment.

(3) Naval Detention Quarters Rules may apply with the necessary modifications all or any of the provisions of sections thirty-nine to forty-two of the M37 Prison Act 1952 (which relate to offences by persons other than prisoners).

(4) Naval Detention Quarters Rules may, to such extent as may be provided by the Rules, be made so as to apply to persons detained in naval detention quarters while serving sentences of imprisonment or detention awarded under the M38 Army Act 1955, or the M39 Air Force Act 1955, notwithstanding that such persons are not for time being subject to this Act.

(5) Naval Detention Quarters Rules may contain such incidental and supplementary provisions as are necessary for the purposes of the Rules.

(6) [F299 The Secretary of State] may, in respect of any foreign station on which persons subject to this Act are on active service, delegate the power to make Naval Detention Quarters Rules to the Commander-f in-Chief or flag officer commanding the station, subject to such restrictions, reservations, exceptions and conditions as [F299 the Secretary of State] may think fit.

(7) Naval Detention Quarters Rules made by [F299 the Secretary of State] under this section shall be made by statutory instrument; and any statutory instrument containing such rules shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F299 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F300 Words inserted by S.I. 1964/488, Sch. 1 Pt. I

F301 Words in s. 82(1)(d) repealed (1.10.1996) by 1996 c. 46, s. 35(1)(2), Sch. 6 para. 6, Sch. 7 Pt. III; S.I. 1996/2474, art. 2, Sch.

F302 “the Coroners Act 1988” substituted (E.W.) for “the Coroners Acts 1887 to 1926” by Coroners Act 1988 (c. 13, SIF 33), s. 36(1), Sch. 3 para. 12

Modifications etc. (not altering text)

C26 S. 82 amended by Courts-Martial (Appeals) Act 1968 (c. 20), s. 52

C27 S. 82(3) amended (E.W.) by Criminal Justice Act 1961 (c. 39), s. 22(3)

Marginal Citations

M37 1952 c. 52.

M38 1955 c. 18.

M39 1955 c. 19.

[F303 82A Country for service of sentence. U.K.

(1) A person serving in the United Kingdom a sentence of imprisonment or detention awarded under this Act may (in so far as may be specified by or under Naval Detention Quarters Rules) be removed out of the United Kingdom to, but only to—

(a) any colony in which he was entered for service in the Royal Navy, or

(b) any place outside the United Kingdom where the ship or naval establishment to which he for the time being belongs is situated.

(2) Subject to the following provisions of this section, a person sentenced by a court-martial held outside the United Kingdom to imprisonment or detention for a term exceeding twelve months shall as soon as practicable be removed to the United Kingdom.

(3) Subsection (2) above shall not apply in relation to any person belonging to a class of persons specified by or under Naval Detention Quarters Rules as persons whose removal to the United Kingdom would, for reasons of climate, place of birth or place of entry in the Royal Navy, or for any other reason, not be beneficial.

(4) Where a person has been sentenced by a court-martial held outside the United Kingdom to imprisonment or detention for a term exceeding twelve months, the Defence Council may, notwithstanding anything in subsection (2) above, direct that he shall not be required to be removed to the United Kingdom until he has served such part of his sentence, not exceeding two years, as may be specified in the direction; and in determining whether or not to exercise the power conferred by this subsection, the Defence Council shall have regard to any recommendation in that behalf made by the court-martial.

(5) Any direction under subsection (4) above may at any time be revoked by the Defence Council or superseded by a subsequent direction thereunder.

(6) In ascertaining at any time for the purposes of this section the nature or length of any sentence, regard shall be had to any commutation or remission of the sentence previously directed.]

Textual Amendments

F303 S. 82A added by Armed Forces Act 1971 (c. 33), s. 52(1)

83 Service of sentence in civil prison in the United Kingdom. U.K.

The provisions of any enactment, rule or regulation with respect to the confinement, removal and treatment of persons committed to civil prisons in any part of the United Kingdom (including provisions relating to release, discharge and remission) shall apply to any person sentenced under this Act to imprisonment and committed or transferred to any such prison as they apply to a person committed to that prison under a like sentence of a civil court.

84 Removal of certain prisoners. U.K.

(1) Subject to the provisions of this section [F304 the Defence Council], the Commander-in-Chief or the senior naval officer present may by order give directions, in the case of any person subject to this Act who is serving a sentence of imprisonment or detention in a civil prison or a military or air-force establishment,—

(a) for the transfer of that person to any other prison or establishment to which he could have been committed under this Act, there to undergo the remainder of his sentence according to law; or

(b) for the production of that person for the purpose of attending any proceedings under this Act, whether as a witness or for trial or otherwise, or for any other purpose specified in the order,

and any such order may give directions as to the custody of the person to whom it relates and, in the case of an order under paragraph (b) of this subsection, for his return or transfer to the place from which he is removed or to any other place in which his sentence may be required to be served.

(2) An order under this section shall be a sufficient warrant for the removal of the person to whom it relates from the prison or establishment in which he is serving his sentence, for his reception in the prison or establishment to which he is transferred or returned in pursuance of the order, and for his detention in custody pending such reception.

(3) Where the attendance of any such person as aforesaid is required for the purposes of a court-martial under this Act, the power to make an order under paragraph (b) of subsection (1) of this section may be exercised by the Commander-in-Chief or senior naval officer present at the place where that person is confined or where the court-martial is or is to be held.

(4) Any time during which a person removed in pursuance of an order under this section is in naval, military, air force or civil custody, or is serving any sentence of imprisonment or detention passed on him while so removed, shall be reckoned as part of the sentence current when the order was made.

(5) The provisions of this section shall be without prejudice to any enactment, rule or regulation authorising the removal of persons from civil prisons or military or air force establishments; but no order shall be made under this section for the transfer of a person confined in a civil prison within the United Kingdom to any other such prison to which he could be removed under the M40 Prison Act 1952, the M41 Prisons (Scotland) Act 1952, [F305 the M42 Prison Act (Northern Ireland) 1953, or the M43 Criminal Justice Act 1961].

Textual Amendments

F304 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F305 Words substituted by Criminal Justice Act 1961 (c. 39), s. 41(3), Sch. 4

Marginal Citations

M40 1952 c. 52.

M41 1952 c. 61.

M42 1953 c. 18 (N.I.)

M43 1961 c. 39.

Commencement and duration of sentences of imprisonment and detentionF459 U.K.

85 Commencement of sentences. U.K.

(1) Except as otherwise provided by the following provisions of this Part of this Act, and by [F306 section 11(2) of the M44 Courts-Martial (Appeals) Act 1968] (which empowers the court in certain cases to direct that a sentence shall begin to run from the day upon which an application for leave to appeal is dismissed), any term of imprisonment or detention under a sentence awarded [F307 by a court-martial] shall begin to run from the beginning of the day on which the sentence is awarded.

F308 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . F309

Textual Amendments

F306 Words substituted by Courts-Martial (Appeals) Act 1968 (c. 20), Sch. 4

F307 Words in s. 85(1) substituted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 10(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F308 S. 85(2) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 10(3); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F309 S. 85(3) repealed by Armed Forces Act 1971 (c. 33), Sch. 4 Pt. II

Marginal Citations

M44 1968 c. 20.

[F310 85A Sentence of detention awarded on summary trial. U.K.

(1) Subject to the following provisions of this Part of this Act, subsections (2) to (5) below apply to a sentence of detention awarded on summary trial.

(2) If the offender so elects at the time of the award, his sentence shall begin to run from the day on which it is awarded.

(3) For the purposes of subsection (2) above, a sentence shall be taken to be awarded on the day on which the warrant specifying the sentence, as approved in accordance with regulations made by the Defence Council, is read to the offender or, if the offender has been detained in custody since the signature of that warrant by the officer by whom he was tried, on the first day on which he was so detained.

(4) If the offender does not make an election under subsection (2) above or, having made such an election, withdraws it during the appeal period, his sentence or, in the case of withdrawal, the remainder of his sentence shall be suspended by virtue of this subsection—

(a) until the end of the appeal period, or

(b) where an appeal is brought within the appeal period, until the determination of the appeal.

(5) Where an appeal is brought—

(a) within the appeal period, by an offender who has made an election under subsection (2) above which has not been withdrawn, or

(b) after the end of the appeal period, by any offender,

the remainder of his sentence shall be suspended by virtue of this subsection until the determination of the appeal.

(6) In this section “the appeal period” means the period within which an appeal may be brought under section 52FK(2) of this Act.]

Textual Amendments

F310 S. 85A inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 11; S.I. 2000/2366, art. 2 (with Sch. para. 15)

86 Consecutive sentences. U.K.

(1) Where any person who is serving a sentence of imprisonment, whether passed under this Act or otherwise, is sentenced to imprisonment under this Part of this Act, or where a person sentenced to imprisonment under this Part of this Act is further sentenced to imprisonment under subsection (3) of section thirty-eight of this Act, the court or officer by whom the subsequent or further sentence is awarded may order that that sentence shall begin to run from the expiration of the first-mentioned sentence.

(2) Where any person who is serving a sentence of detention passed on him under this Act or under the M45 Army Act 1955, or the M46 Air Force Act 1955, is found guilty under this Act of another offence for which he is sentenced to detention, or where a person sentenced to detention under this Act is further sentenced to detention under subsection (3) of section thirty-eight of this Act, the court or officer by whom the subsequent or further sentence is awarded may order that that sentence shall begin to run from the expiration of the first-mentioned sentence.

[F311 (2A) Where on awarding a sentence of detention (“the subsequent sentence”) the offender’s commanding officer orders under subsection (2) of this section that the subsequent sentence is to begin to run from the expiry of another sentence (“the current sentence”)—

(a) section 85A of this Act shall have effect in relation to the subsequent sentence as if the reference in subsection (2) of that section to the day on which the sentence is awarded were a reference to the expiry of the current sentence, and

(b) where the suspension of a sentence by virtue of subsection (4) or (5) of that section would end before the expiry of the current sentence, the sentence shall run from the expiry of the current sentence.]

[F312 (3) Where a person is convicted by a court-martial of two or more offences under section 42 of this Act consisting in the commission of a civil offence for which a civil court in England could award imprisonment, the court-martial may by its sentence award, for any of the said offences, a term of imprisonment which is to run from the expiry of a term awarded by that sentence for any other of those offences.]

Textual Amendments

F311 S. 86(2A) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 13; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F312 S. 86(3) added by Armed Forces Act 1971 (c. 33), ss. 39(3), 78(4)

Marginal Citations

M45 1955 c. 18.

M46 1955 c. 19.

87 Periods of compassionate release. U.K.

Where any person detained in naval detention quarters or in a military or air-force establishment in pursuance of a sentence of imprisonment or detention passed on him under this Part of this Act is released on compassionate grounds in pursuance of Naval Detention Quarters Rules, or Imprisonment and Detention Rules made under the M47 Army Act 1955, or the M48 Air Force Act 1955, as the case may be, no account shall be taken, in calculating the period for which he is liable to be detained under his sentence, of the period beginning with the day after that on which he is so released and ending with the day on which he is required to return to custody.

Marginal Citations

M47 1955 c. 18.

M48 1955 c. 19.

88 Periods of unlawful absence. U.K.

(1) Where any person sentenced under this Part of this Act to imprisonment or detention becomes unlawfully at large during the currency of the sentence, no account shall be taken, in calculating the period for which he is liable to be detained under his sentence, of the period beginning with the day on which he becomes unlawfully at large and ending with the day on which he is taken into naval, military or air force custody or the custody of a civil authority, as being a person unlawfully at large, or, not having been taken into such custody, returns to the place in which he was imprisoned or detained before he became unlawfully at large:

Provided that if it appears to [F313 the Defence Council] that during any part of that period he was in the custody of a civil authority or of any naval, military or air force authority specified in Imprisonment and Detention Rules made for the purpose of paragraph (b) of the proviso to subsection (2) of section one hundred and nineteen of the M49 Army Act 1955, or the M50 Air Force Act 1955, that part of the period shall be disregarded for the purposes of this subsection.

(2) For the purposes of this section a person temporarily released from custody in pursuance of the appropriate rules or otherwise allowed out of naval, military, air force or civil custody for any period or subject to any condition, shall be treated as unlawfully at large if he fails to return at the expiration of the period, or to comply with the condition, as the case may be, or if an order recalling him has been made in pursuance of the said rules.

(3) In this section “the appropriate rules” means—

(a) in relation to a person serving a sentence in naval detention quarters, Naval Detention Quarters Rules;

(b) in relation to a person serving a sentence in military or air-force custody, Imprisonment and Detention Rules made under the M51 Army Act 1955, or the M52 Air Force Act 1955, as the case may be;

(c) in relation to a person serving a sentence in civil custody, rules made under subsection (5) of section forty-seven of the M53 Prison Act 1952, subsection (6) of section [F314 thirty-five of the M54 Prisons (Scotland) Act 1952][F314 39 of the Prisons (Scotland) Act 1989], or paragraph (c) of subsection (1) of section thirteen of the M55 Prison Act (Northern Ireland) 1953, or (in the case of a person serving a sentence outside the United Kingdom) any corresponding provision of the law of the country or territory in which he is serving his sentence;

and “civil authority” means a civil authority (whether of the United Kingdom or of any country or territory outside the United Kingdom) authorised by law to detain persons, and includes a constable.

(4) In relation to any person committed or transferred to a civil prison in the United Kingdom, this section shall have effect in substitution for section forty-nine of the M56 Prison Act 1952, section [F315 thirty-seven of the M57 Prisons (Scotland) Act 1952][F315 40 of the Prisons (Scotland) Act 1989], or section thirty-eight of the M58 Prison Act (Northern Ireland) 1953, as the case may be.

Textual Amendments

F313 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F314 “39 of the Prisons (Scotland) Act 1989” substituted (S.) for words commencing “thirty-five” by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 6

F315 By Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 6 it is provided that the words “40 of Prisons (Scotland) Act 1989” are substituted (S.) for “37 of the Prisons (Scotland) Act 1952”

Marginal Citations

M49 1955 c. 18.

M50 1955 c. 19.

M51 1955 c. 18.

M52 1955 c. 19.

M53 1952 c. 52.

M54 1952 c. 61.

M55 1953 c. 18 (N.I.)

M56 1952 c. 52.

M57 1952 c. 61.

M58 1953 c. 18 (N.I.)

89 Limitation of total period of sentences of detention. U.K.

(1) Notwithstanding anything in this Part of this Act, no offender shall be kept continuously in detention for a period exceeding two years in pursuance of two or more sentences of detention.

(2) The foregoing subsection shall not affect the validity of any order or direction under this Part of this Act that a sentence of detention shall begin to run from the expiration of another such sentence; but so much of any term of detention to which any such order or direction relates as would prolong the total term of detention beyond two years shall be remitted by virtue of the order or direction.

[F316 (2A) Where the whole or part of a sentence of detention is suspended by virtue of section 85A(4) or (5) of this Act, any period of detention ending with the beginning of the suspension shall be taken for the purposes of subsection (1) above to be continuous with any period of detention beginning with the end of the suspension.]

(3) Where any person sentenced to detention under this Act, the M59 Army Act 1955, or the M60 Air Force Act 1955, is subsequently sentenced to imprisonment under this Act, any part of the sentence of detention which has not been served shall be remitted by virtue of the sentence of imprisonment, whether or not that sentence is suspended.

Textual Amendments

F316 S. 89(2A) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 15; S.I. 2000/2366, art. 2 (with Sch. para. 15)

Marginal Citations

M59 1955 c. 18.

M60 1955 c. 19.

[F317 Postponement of sentences]F459 U.K.

Textual Amendments

F317 S. 89A and crossheading inserted (1.4.1997 with savings) by 1996 c. 46, s. 9(3); S.I. 1997/304, art. 2 (with art. 3)

F318 89A Postponement of sentences. U.K.

(1) On passing any sentence a court-martial may order that the sentence shall not have effect until the end of the period specified in the order.

(2) On reviewing a sentence under section 70 of this Act, the reviewing authority may—

(a) if the sentence has not had effect, order that the sentence shall not have effect until the end of the period specified in the order;

(b) if the sentence has had effect, order that the sentence shall cease to have effect on the making of the order until the end of the period specified in the order.

(3) On exercising any power under section 71 of this Act to pass or substitute a sentence, the reviewing authority may order that the sentence shall not have effect until the end of the period specified in the order.

(4) The Defence Council or any officer authorised by them may terminate the period specified in an order under this section or extend such a period for a further period specified by them.

(5) On the termination of such a period the sentence in respect of which the order in question was made shall have effect or (in the case of an order under subsection (2)(b) above) resume effect.

(6) Nothing in this section shall be taken to prevent section 85(1) of this Act from applying in relation to a sentence of imprisonment or detention awarded under this Act.

Textual Amendments

F318 S. 89A inserted (1.4.1997 with savings) by 1996 c. 46, s. 9(3); S.I. 1997/304, art. 2 (with art. 3)

Suspension and reconsideration of sentences of imprisonment and detentionF459 U.K.

90 Suspension of sentences. U.K.

(1) Where any person has been sentenced under this Act to imprisonment or detention, the authority having power under section eighty-one of this Act to issue a committal order may, in lieu of issuing such an order, order that the sentence be suspended; and in [F319 any case where a sentence is suspended under this subsection] the sentence shall not begin to run until a committal order is issued under section ninety-one of this Act.

[F320 (1A) Where any person has been sentenced under this Act by a court-martial to imprisonment or detention, the court-martial may itself exercise the power under subsection (1) above to order the suspension of the sentence.]

(2) Where any person has been sentenced under this Act to imprisonment or detention and a committal order in respect of that sentence has been issued under the said section eighty-one, the sentence may be suspended by an order made—

(a) in any case, by [F321 the Defence Council] or by any officer holding such command as may be prescribed by regulations made by [F321 the Defence Council];

(b) where the committal order was issued by an officer not holding such command, by that officer;

and in any such case the offender shall be released and the currency of the sentence suspended until a further committal order is issued in respect of that sentence under section ninety-one of this Act.

(3) Where a sentence is suspended under this section, [F321 the Defence Council] or, subject to any regulations or directions made or given by [F321 the Defence Council], any other authority by whom the sentence is suspended, may direct that any other punishment which the suspended sentence involves shall be suspended or remitted; but except as aforesaid the suspension of a sentence under this section shall not affect any such other punishment.

Textual Amendments

F319 Words in s. 90(1) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 12(1); S.I. 1991/2719, art. 2

F320 S. 90(1A) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 12(1); S.I. 1991/2719, art. 2

F321 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

91 Committal or re-committal of persons under suspended sentence. U.K.

(1) Where a sentence of imprisonment or detention is suspended under section ninety of this Act, a committal order may at any time be issued in respect of the sentence—

(a) in any case, by [F322 the Defence Council] or by any officer holding such command as may be prescribed by regulations made by [F322 the Defence Council];

(b) where a committal order under section eighty-one of this Act had been issued before the suspension of the sentence by an officer not holding such command, by that officer.

(2) In relation to a sentence in respect of which a committal order has been issued under this section, subsection (2) of section ninety of this Act and subsection (1) of this section shall apply as if for any reference to a committal order under section eighty-one of this Act there were substituted a reference to the committal order under this section.

(3) Where any person whose sentence is suspended under the said section ninety is, during the suspension, found guilty under this Act of another offence for which he is sentenced to imprisonment or detention, then, subject to any recommendation to the contrary made by the court or officer by whom he is so sentenced, and subject to the provisions of subsection (3) of section eighty-nine of this Act,—

(a) the authority by whom a committal order under subsection (1) of this section is issued in respect of the suspended sentence, or

(b) the authority by whom a committal order under section eighty-one of this Act or under subsection (1) of this section is issued in respect of the further sentence

may direct that the sentence in respect of which the order is issued shall begin to run from the expiration of the other sentence.

Textual Amendments

F322 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Valid from 18/07/2008

[F323 91A Activation of suspended sentence by court-martial: appeals U.K.

(1) Subsections (2) to (4) apply where a court-martial makes an order under section 91(1) of this Act.

(2) For the purposes of the Courts-Martial (Appeals) Act 1968 (c. 20) (“the 1968 Act”)—

(a) the order is to be treated as a sentence passed on the offender for the offence for which the sentence was passed;

(b) if the offender was not convicted by court-martial of that offence, he is to be treated as having been so convicted;

(c) any appeal, or application for leave to appeal, against the sentence passed in respect of the new offence is to be treated as also being an appeal or application for leave to appeal against the order; and

(d) any appeal, or application for leave to appeal, against the order is to be treated as also being an appeal or application for leave to appeal against the sentence passed in respect of the new offence.

(3) In relation to any appeal against the order, section 16A of the 1968 Act (powers on appeals against sentence) is to be read as conferring power—

(a) to quash the order; or

(b) if the court-martial gave a direction under section 91(2) of this Act, to quash the direction.

(4) Where the Appeal Court quashes the order, or a direction under section 91(2) of this Act, then in relation to any appeal against the sentence passed in respect of the new offence—

(a) section 16A of the 1968 Act has effect as if the words “and which is not of greater severity than that for which it is substituted” were omitted; but

(b) the Appeal Court may not exercise its powers under that section in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the court-martial.

(5) Subsections (6) and (7) apply where a court-martial has power to make an order under section 91(1) of this Act in respect of a sentence (“the suspended sentence”) but does not do so.

(6) On any appeal against the sentence passed in respect of the new offence, the Appeal Court's power under section 16A of the 1968 Act to pass a sentence in substitution for the sentence of the court-martial includes—

(a) power to make an order under section 91(1) of this Act in respect of the suspended sentence; and

(b) if the court makes such an order, power to give a direction under section 91(2) of this Act in relation to the order.

(7) But the Appeal Court may not exercise its powers under subsection (6) in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the court-martial.

(8) In this section—

(a) “the new offence” means the offence mentioned in section 91(1) of this Act;

(b) “the Appeal Court” means the Courts-Martial Appeal Court.

Textual Amendments

F323 Ss. 91-91D substituted for s. 91 (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), art. 31 (with Sch. para. 10)

Valid from 18/07/2008

91B Activation of suspended sentence by commanding officer U.K.

(1) Where, while a sentence of detention is suspended under section 90 of this Act—

(a) an officer finds the offender guilty on summary trial of an offence committed since the sentence was suspended, or

(b) the offender is convicted of an offence in the British Islands committed since the sentence was suspended and subsequently appears before the officer in command of the ship or naval establishment to which he belongs,

the officer may make an order determining the suspension of the sentence (whether or not he also makes a committal order under section 81(3) of this Act, in a case in which he is not prohibited by section 81(4) from doing so).

(2) Subsections (3) to (8) apply where an officer makes an order under subsection (1).

(3) If the sentence is for a term of more than 90 days, the order has effect as if the sentence were for a term of 90 days; but this is subject to section 91C of this Act (partial activation by commanding officer of suspended sentence for more than 90 days).

(4) The sentence in respect of which the order is made is to be treated for the purposes of section 85A of this Act (commencement of sentence of detention awarded on summary trial) as a sentence awarded on summary trial at the time at which the order is made.

(5) The reference in subsection (3) of that section to the signature of the warrant by the officer by whom the offender was tried is to be read, in relation to the sentence in respect of which the order is made, as a reference to the making, in accordance with regulations made under section 52F of this Act, of an application to higher authority for permission to make the order.

(6) The officer may direct that the sentence in respect of which the order is made (“the subsequent sentence”) shall begin to run from the end of another sentence of detention (“the current sentence”) which—

(a) has been passed on the offender on a previous occasion; or

(b) where the order is made by virtue of subsection (1)(a), the officer passes on him on the same occasion.

(7) Subsection (6) is subject to section 89 of this Act (limitation of total period of sentences of detention), as modified by section 91C of this Act in a case where that section applies.

(8) Where the officer gives a direction under subsection (6)—

(a) section 85A of this Act applies to the subsequent sentence as if the reference in subsection (2) of that section to the day on which the sentence is awarded were to the expiry of the current sentence, and subsection (3) of that section were omitted; and

(b) where the suspension of the subsequent sentence by virtue of subsection (4) or (5) of that section would end before the expiry of the current sentence, the subsequent sentence shall run from the expiry of the current sentence.

Textual Amendments

F323 Ss. 91-91D substituted for s. 91 (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), art. 31 (with Sch. para. 10)

Valid from 18/07/2008

91C Partial activation by commanding officer of suspended sentence for more than 90 days U.K.

(1) This section applies where an officer has made an order under section 91B(1) of this Act (activation of suspended sentence by commanding officer) in respect of a sentence for a term of more than 90 days.

(2) That part of the term which exceeds 90 days is not to be remitted by virtue of section 89(2) of this Act (limitation of total period of sentences of detention).

(3) Unless the order is quashed on appeal, sections 91 and 91B of this Act (activation of suspended sentence by court-martial and by commanding officer respectively) have effect as if—

(a) the sentence were for that part of the term which exceeds 90 days; and

(b) no order determining the suspension of the sentence had been made.

(4) For the purposes of section 92(3) of this Act (remission of suspended sentence) the date on which the order was made is to be treated as the date on which the suspension of the sentence took effect.

Textual Amendments

F323 Ss. 91-91D substituted for s. 91 (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), art. 31 (with Sch. para. 10)

Valid from 18/07/2008

91D Activation of suspended sentence by commanding officer: appeals etc. U.K.

(1) For the purposes of sections 52FF to 52FR and 71B of this Act (appeals and review) an order under section 91B(1) of this Act is to be treated as a punishment awarded for the offence for which the sentence was passed.

(2) In relation to any appeal against such an order, section 52FM(4) of this Act (powers of the summary appeal court on an appeal against punishment) has effect as if for paragraphs (a) and (b) there were substituted—

“(a) may confirm the order;

(b) may quash the order; or

(c) if the officer who made the order gave a direction under section 91B(6) of this Act, may confirm the order but quash the direction.”.

(3) Subsections (4) to (6) apply where an officer makes an order under section 91B(1) of this Act by virtue of paragraph (a) of that subsection.

(4) Any appeal, or application for leave to appeal, against the finding or the punishment awarded in respect of the offence mentioned in that paragraph (“the new offence”) is for the purposes of sections 52FF to 52FR of this Act to be treated as also being an appeal or application for leave to appeal against the order.

(5) Any appeal, or application for leave to appeal, against the order is for those purposes to be treated as also being an appeal or application for leave to appeal against the punishment awarded in respect of the new offence.

(6) Where the summary appeal court quashes the order, or a direction under section 91B(6) of this Act, then—

(a) in relation to any appeal against the finding of guilt in respect of the new offence, the references in section 52FM(2)(b)(ii) and (3)(b) of this Act to the punishment originally awarded include the order and any such direction given in relation to it (as well as the punishment awarded in respect of the new offence); and

(b) in relation to any appeal against the punishment awarded in respect of the new offence, the reference in section 52FM(4)(b)(ii) of this Act to the punishment originally awarded includes the order and any such direction given in relation to it (as well as the punishment awarded in respect of the new offence).

(7) Subsections (8) and (9) apply where an officer has power to make an order under section 91B(1) of this Act by virtue of paragraph (a) of that subsection but does not do so.

(8) On any appeal against the finding of guilt or the punishment awarded in respect of the new offence, the summary appeal court's powers under section 52FM(2)(b), (3) and (4)(b) of this Act to vary the punishment or substitute another punishment include—

(a) power to make the order under section 91B(1) of this Act which the officer could have made; and

(b) power to give any direction under section 91B(6) of this Act which the officer could have given if he had made the order.

(9) But the court may not exercise its powers under subsection (8) in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the officer who tried him for the new offence.]

Textual Amendments

F323 Ss. 91-91D substituted for s. 91 (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), art. 31 (with Sch. para. 10)

92 Reconsideration of sentences. U.K.

(1) Where any person has been sentenced under this Act to imprisonment or detention and the sentence is not for the time being suspended under section ninety of this Act, the unexpired portion of the sentence may be remitted by an order made—

(a) in any case, by [F324 the Defence Council] or by any officer holding such command as may be prescribed by regulations made by [F324 the Defence Council];

(b) where the committal order or last committal order under section eighty-one or section ninety-one of this Act was issued by an officer not holding such command, by that officer,

and in any such case the offender shall be discharged from custody.

(2) Any sentence of imprisonment or detention which is for the time being suspended under the said section ninety may at any time be reconsidered by [F324 the Defence Council] or any other authority by whom the sentence was or could have been suspended, and shall be so reconsidered at intervals of not more than three months; and if on any such reconsideration it appears that the conduct of the offender since his conviction has been such as to justify remission of the sentence, whether in whole or in part, it shall be remitted accordingly.

[F325 (3) Without prejudice to subsection (2) above, a sentence of imprisonment or detention which has been suspended shall, unless the suspension has been sooner determined, be remitted by virtue of this subsection at the expiry of one year from the date on which the suspension took effect.]

Textual Amendments

F324 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F325 S. 92(3) added by Armed Forces Act 1971 (c. 33), s. 54(2)

Part IIIF459 U.K. Provisions relating to civilians and civil authorities

Offences by civilians triable by court-martialF459 U.K.

93 Spying in ships or in naval establishments abroad. U.K.

Every person not subject to this Act who, being on board any of Her Majesty’s ships or vessels, or being within any of Her Majesty’s naval establishments outside [F326 the United Kingdom and Colonies], acts as a spy for the enemy shall be liable on conviction by court-martial to . . . F327 imprisonment for any term.

Textual Amendments

F326 Words substituted by Armed Forces Act 1976 (c. 52), s. 15(1)

F327 Words repealed by Armed Forces Act 1981 (c. 55), Sch. 5 Pt. II

Modifications etc. (not altering text)

C28 S. 93 amended by Armed Forces Act 1981 (c. 55), s. 17

94 Seduction from duty in ships or in naval establishments abroad. U.K.

Every person not subject to this Act who, being on board any of Her Majesty’s ships or vessels, or being within any of Her Majesty’s naval establishments outside [F328 the United Kingdom and Colonies], endeavours to seduce any person subject to this Act from his duty or allegiance to Her Majesty shall be liable on conviction by court-martial to imprisonment for any term.

Textual Amendments

F328 Words substituted by Armed Forces Act 1976 (c. 52), s. 15(1)

95 Arrest and jurisdiction. U.K.

(1) Any person found committing an offence under section ninety-three or section ninety-four of this Act, or alleged to have committed or reasonably suspected of having committed such an offence, may be arrested by any officer or rating subject to this Act, or by any provost officer or person legally exercising authority under a provost officer or on his behalf.

(2) Any such offence may be tried and punished by court-martial under Part II of this Act; and the provisions of the said Part II (except provisions relating to summary trial and to disciplinary courts) shall apply accordingly as they apply in relation to offences under Part I of this Act.

Offences punishable by civil courtsF459 U.K.

96 False pretence of desertion or absence without leave. U.K.

Every person who, whether within or without [F329 the United Kingdom], falsely represents himself to any naval, military, air force or civil authority to be a person who is illegally absent from any of Her Majesty’s naval forces shall be liable on summary conviction to a fine not exceeding [F330 level 3 on the standard scale] or to imprisonment for a term not exceeding three months or to both such a fine and such imprisonment.

Textual Amendments

F329 Words substituted by Armed Forces Act 1976 (c. 52), s. 15(2)

F330 Words substituted by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G and (N.I.) S.I. 1984/703 (N.I. 3), arts. 5, 6

97 Procuring or assisting desertion or absence without leave. U.K.

(1) Every person who, whether within or without [F331 the United Kingdom],—

(a) procures or persuades any person subject to this Act to commit an offence of desertion, of absenting himself without leave or of improperly leaving his ship . . . F332 ; or

(b) knowing that any such person is about to commit such an offence as aforesaid, assists him in so doing; or

[F333 (c) knowing any such person to have committed such an offence, procures or persuades or assists him to remain a deserter, absentee without leave or improperly absent from his ship . . . F333 , or assists in his rescue from custody.]

shall be guilty of an offence against this section.

(2) A person guilty of an offence against this section shall be liable on summary conviction to a fine not exceeding fifty pounds or to imprisonment for a term not exceeding three months, or to both such a fine and such imprisonment, or on conviction on indictment to a fine not exceeding five hundred pounds or to imprisonment for a term not exceeding two years, or to both such a fine and such imprisonment.

Textual Amendments

F331 Words substituted by Armed Forces Act 1976 (c. 52), s. 15(2)

F332 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F333 S. 97(1)(c) substituted by Armed Forces Act 1966 (c. 45), s. 18(2)

98 Unlawful purchase of naval property. U.K.

(1) Every person who, whether within or without [F334 the United Kingdom], acquires any naval property, or solicits or procures any person to dispose of any naval property, or acts for any person in the disposing of any naval property, shall be guilty of an offence against this section unless he proves either—

(a) that he did not know, and could not reasonably be expected to know, that the chattels in question were naval property; or

(b) that those chattels had (by the transaction with which he is charged or some earlier transaction) been disposed of by order of or with the consent of [F335 the Defence Council] or of some person in authority who had, or whom he had reasonable cause to believe to have, power to give the order or consent; or

(c) that those chattels had become the property of an officer who had retired or ceased to be an officer, or of a rating who had been discharged, or of the personal representatives of a person who had died.

(2) A person guilty of an offence against this section shall be liable on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding three months, or to both such a fine and such imprisonment, or on conviction on indictment to a fine not exceeding five hundred pounds or imprisonment for a term not exceeding two years, or to both such a fine and such imprisonment.

(3) In this section the following expressions have the meanings hereby respectively assigned to them—

• “acquire” means, buy, take in exchange, take in pawn or otherwise receive (whether apart from this section the receiving is lawful or not);

• “dispose” means, sell, give in exchange, pledge or otherwise hand over (whether apart from this section the handing over is lawful or not);

• “naval property” means any chattel of any description belonging to Her Majesty, which has been issued for use for naval purposes or is held in store for the purpose of being so issued when required, and includes any chattel which had belonged, and had been issued or held, as aforesaid at some past time.

Textual Amendments

F334 Words substituted by Armed Forces Act 1976 (c. 52), s. 15(2)

F335 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

99 Illegal dealings in official documents. U.K.

(1) Every person who receives, detains or has in his possession—

(a) as a pledge or as security for a debt; or

(b) with a view to obtaining payment from the person entitled thereto of a debt due either to himself or to any other person,

any official document issued in connection with the payment to any person of any pay, pension, allowance, gratuity or other payment payable in respect of his or any other person’s service in Her Majesty’s naval forces shall be guilty of an offence against this section.

(2) Every person who has in his possession without lawful authority or excuse (the proof whereof shall lie on him) any such document as aforesaid, or any official document issued in connection with the mobilisation or demobilisation of any of Her Majesty’s naval forces or any member thereof, shall be guilty of an offence against this section.

(3) A person guilty of an offence against this section shall be liable on summary conviction to a fine not exceeding [F336 level 3 on the standard scale] or to imprisonment for a term not exceeding three months, or to both such a fine and such imprisonment.

(4) For the purpose of this section a document shall be deemed to be in the possession of a person if he has it under his control, and whether he has it for his own use or benefit or for the use or benefit of another.

(5) References in this section to Her Majesty’s naval forces include references to the naval forces of any Commonwealth country or raised under the law of any colony.

Textual Amendments

F336 Words substituted by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G and (N.I.) S.I. 1984/703 (N.I. 3), arts. 5, 6

100 Jurisdiction and application of summary fines. U.K.

(1) A person alleged to have committed an offence under any provision of sections ninety-six to ninety-nine of this Act may, subject to the provisions of this section, be tried by a civil court having jurisdiction in the place where he is for the time being, notwithstanding that the offence was committed outside the jurisdiction of that court.

(2) Notwithstanding anything in the foregoing subsection, an offence committed in England and Wales, in Scotland or in Northern Ireland, shall not be triable outside England or Wales, Scotland or Northern Ireland, as the case may be.

(3) . . . F337

Textual Amendments

F337 S. 100(3) repealed by Criminal Justice Act 1972 (c. 71), Sch. 6 Pt. II

Process and execution in certain civil proceedingsF459 U.K.

101 Service of proceedings for maintenance, etc. U.K.

(1) Any process to be served on an officer or rating who is subject to this Act (in this section referred to as “the defendant”) in connection with proceedings for a maintenance order as defined by this section, or for the variation, revocation or revival of such an order, shall be deemed to be duly served on the defendant if served on the commanding officer of the ship or establishment in which the defendant is serving or on the books of which he is borne, and may, without prejudice to any other method of service, be so served within the United Kingdom by registered post.

(2) . . . F338

(3) . . . F339

(4) Where any such process is served in the United Kingdom and the defendant will be required to appear in person at the hearing, the service of the process shall be of no effect if [F340 his commanding officer certifies] to the court by which the process was issued that the defendant is under orders for service on a foreign station and that [F340 in the commanding officer’s opinion] it would not be possible for the defendant to attend the hearing and return in time to embark for that service.

[F341 (4A) Where any such process is to be served in the United Kingdom or elsewhere and the defendant will be required to appear in person at the hearing, the service of that process shall be of no effect if his commanding officer certifies to the court by which the process was issued that the defendant is absent without leave or has deserted and remains in desertion.]

(5) In this section the expression “maintenance order” means an order made by a court in the United Kingdom or registered in or confirmed by such a court under the provisions of the M61 Maintenance Orders (Facilities for Enforcement) Act 1920 [F342 or registered in such a court under Part I of the M62 Maintenance Orders (Reciprocal Enforcement) Act 1972 [F343 or Part I of the Civil Jurisdiction and Judgments Act 1982]], being an order for the payment of any periodical or other sum specified therein for or in respect of—

[F344 (a) the maintenance of the wife of the person against whom the order is made; or

(b) the maintenance of any child of that person or his wife or of any other child who has been treated by them both as a child of their family; or]

(c) any costs incurred in obtaining the order; or

(d) any costs incurred in proceedings on appeal against or for the variation, revocation or revival of any such order;

[F345 and includes an affiliation order within the meaning of [F346 the Affiliation Proceedings Act 1957]]

[F347 (5A) In subsection (5) above—

(a) references to the wife of a person include, in relation to an order made in proceedings in connection with the dissolution or annulment of a marriage, references to a person who would have been his wife if the marriage had subsisted; and

(b) without prejudice to any enactment or rule of law relating to adoption or legitimation, references to a child of a person or his wife shall be construed without regard to whether or not the father and mother of the child have or had been married to each other at any time.

(5B) In relation to women members of Her Majesty’s naval forces, references in this section to a wife shall be construed as references to a husband.]

(6) Nothing in this section shall be construed as enabling process to be served in connection with proceedings in a court of summary jurisdiction unless the defendant is within the United Kingdom or is serving in a ship on a home station or a naval establishment within the United Kingdom.

Textual Amendments

F338 S. 101(2) repealed by Armed Forces Act 1981 (c. 55), Sch. 5 Pt. II

F339 S. 101(3) repealed by Armed Forces Act 1971 (c. 33), Sch. 4 Pt. II

F340 Words substituted by Armed Forces Act 1981 (c. 55), s. 18(3)(b)

F341 S. 101(4A) inserted by Armed Forces Act 1981 (c. 55), s. 18(3)(c)

F342 Words inserted by Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18), Sch. para. 3

F343 Words inserted by Civil Jurisdiction and Judgments Act 1982 (c. 27, SIF 45:3), ss. 15(4), 23(2), 36(6), Sch. 12 Pt. I para. 2

F344 S. 101(5)(a)(b) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 15(5); S.I. 1991/2719, art. 2

F345 Words in s. 101(5) repealed (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(2), Sch. 10; S.R. 1996/297, art. 2(2)

F346 Words substituted by virtue of Affiliation Proceedings Act 1957 (C. 55), s. 12(3)

F347 S. 101(5A)(5B) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 15(6); S.I. 1991/2719, art. 2

Marginal Citations

M61 1920 c. 33.

M62 1972 c. 18.

102 Exemption of naval property from execution. U.K.

No judgment or order given or made by any court against a member of any of Her Majesty’s naval forces or of any naval force of a Commonwealth country or raised under the law of any colony shall be enforced by the levying of execution on any property of the person against whom it is given or made, being arms, ammunition, equipment, instruments or clothing used by him for naval purposes.

Arrest and detention of offenders by civil authoritiesF459 U.K.

103 Arrest under warrants of naval authorities. U.K.

(1) A warrant for the arrest of a person suspected of any offence under Part I of this Act may be issued by any Commander-in-Chief, by the senior naval officer present at any port, by any officer in command of any of Her Majesty’s ships or naval establishments, or by any officer who by virtue of [F348 regulations under section 52E(2)(a) above may exercise the powers of that person’s commanding officer].

(2) A warrant issued under this section shall be addressed to an officer or officers of police, and shall specify the name of the person for whose arrest it is issued and the offence which he is alleged to have committed; and any such warrant may be issued in respect of two or more persons alleged to have committed the same offence or offences of the same class.

(3) A person arrested under a warrant issued under this section shall as soon as practicable be delivered into naval custody; and there shall be handed over with him a certificate signed by the officer of police who causes him to be delivered into naval custody stating the fact, date, time and place of arrest, and whether or not the person arrested was at the time of arrest wearing the uniform of any of Her Majesty’s naval forces.

[F349 (4) A certificate under subsection (3) above shall be in such form as may be prescribed by regulations made by a Secretary of State by statutory instrument and shall for the purpose of this Act be evidence of the matters stated therein.]

Textual Amendments

F348 Words in s. 103(1) substituted (1.4.1997 with saving) by 1996 c. 46, s. 5, Sch. 1 para. 92; S.I. 1997/304, art. 2 (with art. 3)

F349 S. 103(4) added by Armed Forces Act 1971 (c. 33), s. 44(1)

104 Arrest of persons unlawfully at large. U.K.

(1) A constable may arrest without warrant any person who, having been sentenced under Part II of this Act to imprisonment or detention, is unlawfully at large during the currency of the sentence, and may take him to any place in which he may be required in accordance with law to be detained.

(2) The provisions of subsections (2) and (3) of section eighty-eight of this Act shall have effect for the purposes of the foregoing subsection as they have effect for the purposes of that section.

105 Arrest of deserters and absentees. U.K.

(1) A constable may arrest without warrant any person whom he has reasonable cause to suspect of being an officer or rating of any of Her Majesty’s naval forces who has deserted or is absent without leave.

(2) Where no constable is available, any officer or rating who is subject to this Act, or any other person, may arrest any person whom he has reasonable cause to suspect as aforesaid.

(3) Any person having authority to issue a warrant for the arrest of a person charged with crime, if satisfied by evidence on oath that there is, or is reasonably suspected of being, within his jurisdiction an officer or rating of any of Her Majesty’s naval forces who has deserted or is absent without leave, or is reasonably suspected of having deserted or being absent without leave, may issue a warrant authorising his arrest.

(4) Any person taken into custody in pursuance of this section shall as soon as practicable be brought before a court of summary jurisdiction.

[F350 (4A) A person shall also be brought before a court of summary jurisdiction if, having been brought before such a court by virtue of subsection (4) above and discharged by that court by virtue of section 109(3)(b) below—

(a) he is subsequently arrested as an alleged or suspected deserter or absentee without leave under section 45 of this Act, or under a warrant issued under section 103 thereof, and

(b) the question whether he is in fact in desertion or absent without leave raises any issue which was investigated by the court discharging him, and

(c) he does not admit that he is in desertion or absent without leave to the person arresting him under the said section 45 or, as the case may be, to the person into whose custody he is delivered pursuant to the said section 103.]

Textual Amendments

F350 S. 105(4A) inserted by Armed Forces Act 1971 (c. 33), s. 56(1)

Modifications etc. (not altering text)

C29 S. 105 as read with s. 126 extended by Guyana Independence Act 1966 (c. 14), s. 5(2)

106 Arrest of persons suspected of offences punishable by civil courts. U.K.

(1) A constable [F351 may arrest without warrant any person whom he has reasonable grounds for suspecting of having committed an offence punishable under this Part of this Act on summary conviction, and] may seize any property which he has reasonable grounds for suspecting of having been the subject of an offence against section ninety-eight of this Act.

(2) Any person having authority to issue a warrant for the arrest of a person charged with crime may, if satisfied by evidence on oath that a person within his jurisdiction has, or is reasonably suspected of having, in his possession any property which has been the subject of an offence against the said section ninety-eight, grant a warrant to search for such property as in the case of stolen goods; and any property suspected of having been the subject of such an offence which is found on such a search shall be seized by the officer charged with the execution of the warrant, and that officer shall bring the person in whose possession or keeping the property is found before a court of summary jurisdiction.

(3) For the purposes of this section property shall be deemed to be in the possession of a person if he has it under his control, and whether he has it for his own use or benefit or for the use or benefit of another.

Textual Amendments

F351 Words repealed by Police and Criminal Evidence Act 1984 (c. 60, SIF 95), s. 119, Sch. 7 Pt. I (E.W.) and by S.I. 1989/1341 (N.I. 12), art. 90(2)(3), Sch. 7 Pt. I

107 Duties of governors of civil prisons, etc. U.K.

(1) It shall be the duty of the governor of a civil prison—

(a) to receive and confine until discharged in due course of law any person sentenced under this Act to imprisonment who is committed, transferred or returned to that prison in pursuance of a committal order or an order made under section eighty-four of this Act, and to deliver over or discharge any such person in accordance with any order under this Act or on the expiration of his sentence;

(b) to receive and confine for a period not exceeding seven days any person who is for the time being in naval custody upon delivery of an order in that behalf purporting to be signed by a flag officer or by the officer in command of any of Her Majesty’s ships or naval establishments, or upon production of a committal order or an order made under the said section eighty-four relating to that person;

(c) to receive any person duly committed to that prison by a court of summary jurisdiction under this Part of this Act as being illegally absent from any of Her Majesty’s naval forces, and to detain him until, in accordance with the directions of the court, he is delivered into naval custody.

(2) Subsection (1) of this section, except paragraph (a), shall apply to the person having charge of any police station or other place (not being a prison) provided for the confinement of persons in custody as it applies to the governor of a prison.

Modifications etc. (not altering text)

C30 S. 107 as read with s. 126 extended by Guyana Independence Act 1966 (c. 14), s. 5(2)

Powers of civil courts and authorities as to deserters and absenteesF459 U.K.

108 Deserters and absentees surrendering to police. U.K.

(1) Where a person surrenders himself to a constable as being a person who is illegally absent from any of Her Majesty’s naval forces, the constable shall, unless that person surrenders himself at a police station, bring him to a police station.

(2) The officer of police in charge of a police station at which a person has surrendered himself as aforesaid, or to which a person who has so surrendered himself is brought, shall forthwith inquire into the case; and if it appears to that officer that the said person is illegally absent as aforesaid he may cause him to be delivered into naval custody without bringing him before a court of summary jurisdiction or may bring him before such a court.

Modifications etc. (not altering text)

C31 S. 108 as read with s. 126 extended by Guyana Independence Act 1966 (c. 14), s. 5(2)

109 Proceedings before summary courts. U.K.

(1) Where a person who is brought before a court of summary jurisdiction as being illegally absent from any of Her Majesty’s naval forces admits that he is so absent and the court is satisfied of the truth of the admission, the court may in any case, and shall unless he is in custody for some other cause, forthwith either—

(a) cause him to be delivered into naval custody in such manner as the court may think fit; or

[F352 (b) where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into naval custody.]

F353 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where a person who is brought as aforesaid does not admit that he is illegally absent as aforesaid, or does so admit but the court is not satisfied of the truth of the admission, the court shall consider the evidence and any statement of the accused, and thereupon—

(a) if the court is satisfied that he is subject to this Act and is of opinion that there is sufficient evidence to justify his being tried under Part II of this Act for an offence of desertion, absence without leave or improperly leaving his ship . . . F354 , the court may in any case, and shall unless he is in custody for some other cause, either cause him to be delivered into naval custody or [F355 , where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into naval custody];

(b) in any other case the court shall, unless he is in custody for some other cause, discharge him.

(4) The following provisions of [F356 the M63 Magistrates’ Courts Act 1980], that is to say the provisions relating to the constitution and procedure of courts of summary jurisdiction acting as examining justices and conferring powers of adjournment and remand on such courts so acting, and the provisions as to evidence and the issue and enforcement of summonses or warrants to secure the attendance of witnesses, shall apply to any proceedings under this section; and for the purposes of any such proceedings, a certificate purporting to be signed by the officer in command of any of Her Majesty’s ships or naval establishments and stating that a person is subject to this Act and is illegally absent as aforesaid shall be evidence of the matters so stated.

Textual Amendments

F352 S. 109(1)(b) substituted (2.10.2000) by 2000 c. 4, s. 9(3)(a); S.I. 2000/2366, art. 2

F353 S. 109(2) repealed (2.10.2000) by 2000 c. 4, ss. 9(3)(b), 27, Sch. 4; S.I. 2000/2366, art. 2

F354 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

F355 Words in s. 109(3)(a) substituted (2.10.2000) by 2000 c. 4, ss. 9(3)(c), 27, Sch. 4; S.I. 2000/2366, art. 2

F356 Words substituted by virtue of Magistrates' Courts Act 1980 (c. 43), Sch. 8 para. 5

Modifications etc. (not altering text)

C32 S. 109 as read with s. 126 extended by Guyana Independence Act 1966 (c. 14), s. 5(2)

Marginal Citations

M63 1980 c. 43.

110 Certificates of arrest or surrender. U.K.

(1) Where an officer of police causes any person to be delivered into naval custody under section one hundred and eight of this Act without being brought before a court of summary jurisdiction, there shall be handed over with that person a certificate in the prescribed form signed by the officer of police, containing a statement of the fact, date, time and place of surrender and whether or not the said person was at the time of surrender wearing the uniform of any of Her Majesty’s naval forces.

(2) Where a court of summary jurisdiction causes any person to be delivered into naval custody under section one hundred and nine of this Act, or any person is so delivered after having been committed under that section, there shall be handed over with him a certificate in the prescribed form, signed by a justice of the peace, containing—

(a) a statement of the fact, date, time and place of arrest or surrender, and whether or not the said person was, at the time of arrest or surrender, wearing the uniform of any of Her Majesty’s naval forces; and

(b) such particulars of the proceedings before the court as may be prescribed;

and for any such certificate there shall be payable to the clerk of the court, by such person as [F357 the Defence Council] may direct, such fee (if any) as may be prescribed.

(3) In this section “prescribed” means prescribed by regulations made by [F357 the Secretary of State] by statutory instrument.

Textual Amendments

F357 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Modifications etc. (not altering text)

C33 S. 110 as read with s. 126 extended by Guyana Independence Act 1966 (c. 14), s. 5(2)

C34 S. 110(2) modified by Armed Forces Act 1966 (c. 45), s. 33

Part IVF459 U.K. Miscellaneous and General

Persons subject to this ActF459 U.K.

111 Naval forces, volunteers and trainees. U.K.

[F358 (1) Every officer on the active list, and every rating, of the Royal Navy, [F359 and Queen Alexandra’s Royal Naval Nursing Service] is subject to this Act at all times.

(2) Any officer on any retired or emergency list of officers of the Royal Navy or of Queen Alexandra’s Royal Naval Nursing Service F360 . . . is subject to this Act when ordered on any duty or service for which such an officer is liable, and is so subject from the time appointed to report or attend for that purpose until duly released or discharged.]

[F361 (3) Any officer or rating of any of the naval reserve forces is subject to this Act while—

(a) in permanent service on call out under any provision of the Reserve Forces Act 1980, the Reserve Forces Act 1996 or any other call-out obligations of an officer;

(b) in full-time service under a commitment entered into under section 24 of the Reserve Forces Act 1996;

(c) undertaking any training or duty (whether in pursuance of an obligation or not); or

(d) serving on the permanent staff of the Royal Fleet Reserve or the Royal Naval Reserve.]

(4) Without prejudice to subsection (1) of this section, any [F362 person recalled to the Royal Navy under section 30 of the Reserve Forces Act 1980 or Part VII of the Reserve Forces Act 1996 is subject to this Act from the time he is accepted into service until duly released or discharged.].

(5) Any person not otherwise subject to this Act who volunteers or engages for service, training or exercise with the Royal Navy, not being—

(a)(b) . . . F363

(c) a member of the Sea Cadet Corps or the Combined Cadet Force; or

(d) a person excepted from this subsection by directions of [F364 the Defence Council,]

is subject to this Act during the period of service, training or exercise.

(6) A person not otherwise subject to this Act, being a member of—

(a) any of the armed forces of the Crown raised outside the United Kingdom; or

(b) any armed forces other than armed forces of the Crown,

not being in either case forces excepted from this subsection by directions of [F364 the Defence Council] is subject to this Act when ordered to be trained or exercised on board any of Her Majesty’s ships or in any of Her Majesty’s naval establishments.

(7) Where by virtue of this section this Act applies to any person not being a member of the armed forces of the Crown, it shall apply to him (except so far as may be otherwise provided by regulations made by [F364 the Defence Council])—

(a) if he holds any rank or rate in any other naval, military or air forces, as it applies to a person holding the corresponding rank or rate in the armed forces of the Crown;

(b) in any other case, as it applies to an able seaman.

(8) This section applies to chaplains in the Royal Navy or in any of the naval reserve forces as it applies to officers of the Royal Navy, or of that force, as the case may be.

Textual Amendments

F358 S. 111(1)(2) substituted by Armed Forces Act 1976 (c. 52), s. 4, Sch. 2 para. 2

F359 Words in s. 111(1) substituted (1.10.1996) by 1996 c. 46, s. 35(1), Sch. 6 para. 10; S.I. 1996/2474, art. 2 (with art. 3)

F360 Words in s. 111(2) repealed (1.10.1996) by 1996 c. 46, s. 35(2), Sch. 7 Pt. III; S.I. 1996/2474, art. 2 (with art. 3)

F361 S. 111(3) substituted (1.4.1997) by 1996 c. 14, s. 131(1), Sch. 10 para. 12(2) (with s. 72(5)); S.I. 1997/305, art. 2

F362 Words in s. 111(4) substituted (1.4.1997) by 1996 c. 14, s. 131(1), Sch. 10 para. 12(3) (with s. 72(5)); S.I. 1997/305, art. 2

F363 S. 111(5)(a)(b) repealed by Armed Forces Act 1976 (c. 52), Sch. 10

F364 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

112 Marines. U.K.

(1) An officer, [F365 warrant officer] non-commissioned officer or marine of the marine forces is subject to this Act when borne on the books of any of Her Majesty’s ships or naval establishments.

(2) The provisions of the First Schedule to this Act shall have effect for the purposes of the application of this Act to any person who is subject thereto by virtue of this section.

Textual Amendments

F365 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 3 para. 5(2)

113 Attached military and air forces. U.K.

(1) Subject to the provisions of this section, a member of Her Majesty’s military or air forces is subject to this Act when attached to Her Majesty’s naval forces under section one hundred and seventy-nine of the M64 Army Act 1955, or section one hundred and seventy-nine of the M65 Air Force Act 1955.

(2) The provisions of the Second Schedule to this Act shall have effect for the purposes of the application of this Act to any person who is subject thereto by virtue of this section.

(3) . . . F366

Textual Amendments

F366 S. 113(3) repealed by Armed Forces Act 1976 (c. 52), Sch. 10

Marginal Citations

M64 1955 c. 18.

M65 1955 c. 19.

114 Commonwealth forces. U.K.

(1) Without prejudice to subsection (6) of section one hundred and eleven of this Act, the members of a naval, military or air force of a Commonwealth country are subject to this Act to such extent, and subject to such adaptations and modifications, as may be provided by or under the M66 Visiting Forces (British Commonwealth) Act 1933, or by the law of that country.

(2) Where members of a force of any Commonwealth country are subject to this Act as aforesaid by virtue of the law of that country, Her Majesty may by Order in Council make such adaptations and modifications of this Act in relation to other members of Her Majesty’s naval forces as may be desirable for the purpose of regulating the relations between those members of Her Majesty’s naval forces and members of the force of that country.

Marginal Citations

M66 1933 c. 6.

115 Colonial naval forces. U.K.

(1) Without prejudice to subsection (6) of section one hundred and eleven of this Act, the members of a force raised for the naval defence of a colony in pursuance of section one of the M67 Colonial Naval Defence Act 1931, are subject to this Act to such extent, and subject to such adaptations and modifications, as may be provided by the legislature of that colony under subsection (1) of section two of that Act.

(2) Without prejudice to the foregoing subsection, any officer or rating of any force raised by a colony as aforesaid is subject to this Act while at the disposal of Her Majesty for general service in the Royal Navy under subsection (2) of the said section two.

Marginal Citations

M67 1931 c. 9.

116 Application to deserters, etc. from Commonwealth and colonial naval forces. U.K.

(1) Without prejudice to the foregoing provisions of this Part of this Act, Her Majesty may by Order in Council direct that members of any naval force of a Commonwealth country or raised by any colony shall be subject to this Act so far as it relates to the offences of desertion or absence without leave, and to the arrest [F367 , custody], trial and punishment of persons who have committed or are suspected of having committed either of the said offences.

(2) Where any Order in Council is made under this section in relation to members of a naval force, references in section forty-seven and in Part III of this Act to Her Majesty’s naval forces shall include references to that force.

Textual Amendments

F367 Words in s. 116(1) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 10; S.I. 2000/2366, art. 2

117 Application to passengers in H.M. ships. U.K.

Parts I and II of this Act shall, to such extent and subject to such modifications as may be prescribed by regulations made by [F368 the Defence Council], apply to persons embarked as passengers on board Her Majesty’s ships [F369 , vessels] or aircraft (not being persons who are subject to this Act by virtue of any of the foregoing provisions of this Act or are subject to military or air-force law), as they apply to persons subject to this Act.

Textual Amendments

F368 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F369 Words inserted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 8

118 Application to certain civilians. U.K.

(1) Subject to the provisions of this section where any body of Her Majesty’s naval forces are on active service Parts I and II of this Act shall (so far as applicable) apply to the following persons, that is to say—

(a) any person employed in the service of that body of those forces;

(b) any person employed in the service of any portion or member of that body of those forces; or

(c) any person who accompanies that body of those forces or any portion thereof,

as they apply to persons subject to this Act.

(2) Without prejudice to the foregoing subsection, but subject to the provisions of this section, the following provisions of this Act, that is to say—

(a) sections fourteen, [F370 14A,]thirty-eight and thirty-nine;

(b) sections forty and forty-one, so far as they relate to the sections aforesaid;

(c) sections forty-two and forty-three; and

(d) Part II so far as it applies to an offence under any of the said sections,

shall apply to a person of any class described in the Third Schedule to this Act who is within the limits of the command of any officer commanding any of Her Majesty’s naval forces outside the United Kingdom . . . F371 , as they apply to persons subject to this Act.

[F372 Provided that the said section 39 shall not apply to a person by virtue only of this subsection except at a time when he is on board one of Her Majesty’s ships.]

(3) The provisions of the Fourth Schedule to this Act shall have effect for the purposes of the application of this Act to any person to whom it applies by virtue of this section.

[F373 (3A) A court-martial for the trial of any such person may include in place of the corresponding number of officers not more than two persons who are in the service of the Crown and are persons to whom this Act applies by virtue of this section, but a person who is a member of a court-martial by virtue of this subsection shall not be appointed the president of the court-martial.]

[F374 (3B) On the trial of such a person a court-martial may make an order authorised by Schedule 4A below, and any such order shall be treated as a punishment for the purposes of this Act.]

(4) This section does not apply to any person to whom section one hundred and seventeen of this Act applies, or who is otherwise subject to this Act apart from this section or is subject to military or air-force law apart from section two hundred and nine of the M68 Army Act 1955, or the M69 Air Force Act 1955.

Textual Amendments

F370 Words inserted by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 1 para. 2(3)

F371 Words repealed by Armed Forces Act 1966 (c. 45), Sch. 5

F372 Proviso added by Armed Forces Act 1971 (c. 33), ss. 42, 78(4)

F373 S. 118(3A) inserted by Armed Forces Act 1976 (c. 52), s. 9(2)

F374 S. 118(3B) inserted by Armed Forces Act 1976 (c. 52), Sch. 9 para. 10

Marginal Citations

M68 1955 c. 18.

M69 1955 c. 19.

119 Application to sentenced offenders, etc. U.K.

(1) A person sentenced under Part II of this Act to imprisonment or detention shall be subject to this Act until the expiration of the term of his sentence, whether or not he would have ceased to be subject to this Act apart from the provisions of this subsection; and in relation to any such person this Act shall apply as it applies in relation to an able seaman.

(2) If any person not otherwise subject to this Act, being in custody by virtue of section fifty-one or section ninety-five of this Act, commits or is reasonably suspected of having committed an offence which, if he were subject to this Act, would be an offence against any provision of Part I of this Act, he shall be treated for the purposes of that provision and of Part II of this Act as having been subject to this Act at the time of the offence or suspected offence, and as continuing to be so subject thereafter.

(3) Where by virtue of subsection (2) of this section a person who does not hold any naval rank or rate is treated for the purpose of any provisions of this Act as a person subject to this Act, this Act shall apply to him for that purpose—

(a) if he holds any military or air force rank, as it applies to a person holding the corresponding naval rank or rate;

(b) if he held any naval rank or rate or any military or air-force rank when last subject to this Act apart from this section, as it applies to a person holding that or the corresponding naval rank or rate;

(c) in any other case, as it applies to an able seaman.

Attachment and powers of commandF459 U.K.

120 Attachment to military or air forces. U.K.

(1) Any officer or rating of Her Majesty’s naval forces may be attached temporarily to any of Her Majesty’s military or air forces.

(2) Regulations may be made by [F375 the Defence Council] for prescribing the circumstances in which officers and ratings of Her Majesty’s naval forces are to be treated as attached to any of Her Majesty’s military or air forces, as the case may be, under this section.

(3) . . . F376

(4) A person shall not cease to be subject to this Act by reason only of his being attached to any forces in pursuance of this section.

Textual Amendments

F375 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F376 S. 120(3) repealed by S.I. 1964/488, Sch. 1 Pt. I

121 Attachment to commonwealth and other forces. U.K.

(1) Without prejudice to the provisions of section four of the M70 Visiting Forces (British Commonwealth) Act 1933 (which provides for the attachment of members of home forces to the forces of certain Commonwealth countries), any officer or rating of Her Majesty’s naval forces may, by order of [F377 the Defence Council] or of the Commander-in-Chief or senior naval officer present on a foreign station, be required to serve with any naval, military or air force of a Commonwealth country or of any other country.

(2) A person shall not cease to be subject to this Act by reason only of his being required to serve with any naval, military or air force in pursuance of this section.

Textual Amendments

F377 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Marginal Citations

M70 1933 c. 6.

122 Powers of command of members of co-operating military or air forces. U.K.

(1) In so far as powers of command depend on rank or rate, an officer, warrant officer or non-commissioned officer of any of Her Majesty’s military or air forces who—

(a) is acting with any body of Her Majesty’s naval forces; or

(b) is a member of a body of the said military or air forces which is acting with any body of Her Majesty’s naval forces,

shall have the like such powers as an officer or rating of Her Majesty’s naval forces of corresponding rank or rate.

(2) For the purposes of section eleven, . . . F378 and section forty-five of this Act, any such officer, warrant officer or non-commissioned officer as aforesaid shall be treated as an officer or rating of corresponding rank or rate, and shall have the like powers under the said section forty-five as if he were a person subject to this Act.

Textual Amendments

F378 Words repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt. I

Application to particular countries and territoriesF459 U.K.

123 Scotland. U.K.

(1) The provisions of this section shall have effect for the purpose of the application of this Act to Scotland.

(2) . . . F379

(3) In section forty-eight, the expression “manslaughter” means culpable homicide.

(4) In subsection (2) of section eighty, references to the M71 Capital Punishment Amendment Act 1868, and to section seven of that Act, shall be construed as references to that Act and that section as they apply to Scotland, and for the reference to the sheriff there shall be substituted a reference to the lord provost or provost, or magistrate or magistrates, charged with seeing the sentence of death carried into effect.

(5) In section eighty-two, in subsection (1), for the reference to [F380 the Coroners Acts 1887 to 1926][F380 the Coroners Act 1988], there shall be substituted a reference to section twenty-five of the M72 Prisons (Scotland) Act 1952, and in subsection (3) the reference to sections thirty-nine to forty-two of the M73 Prison Act 1952, shall include a reference to section thirty of the M74 Prisons (Scotland) Act 1952.

(6) In section ninety-eight, the expression “chattel” means corporeal moveable.

(7) In subsection (5) of section one hundred and one, the expression “putative father” means the person proved or admitted to be the father.

(8) In subsection (2) of section one hundred and six, for the words from “and that officer” to the end of the subsection there shall be substituted the words “who shall report the matter to the procurator fiscal”.

(9) In subsection (4) of section one hundred and nine, for the words from the beginning to “such proceedings” there shall be substituted the words “For the purposes of any proceedings under this section”.

[F381 (10) Where by virtue of this Act a document is admissible in evidence or is evidence of any matter stated in it in proceedings before a civil court in England, it shall be sufficient evidence of the matter so stated in such proceedings in Scotland.]

Textual Amendments

F379 S. 123(2) repealed by Armed Forces Act 1966 (c. 45), Sch. 5

F380 “the Coroners Act 1988” substituted (E.W.) for “the Coroners Acts 1887 to 1926” by Coroners Act 1988 (c. 13, SIF 33), s. 36(1), Sch. 3 para. 13

F381 S. 123(10) added by Armed Forces Act 1971 (c. 33), s. 76

Marginal Citations

M71 1868 c. 24.

M72 1952 c. 61.

M73 1952 c. 52.

M74 1952 c. 61.

124 Northern Ireland. U.K.

(1) The provisions of this section shall have effect for the purposes of the application of this Act to Northern Ireland.

(2) In subsection (2) of section eighty, references to the M75 Capital Punishment Amendment Act 1868 . . . F382 , shall be construed as references to that Act . . . F382 as in force from time to time in Northern Ireland, . . . F382 , and accordingly the reference to the sheriff shall be construed as a reference to the under-sheriff.

(3) In section eighty-two, in subsection (1), for the words “the Coroners Acts 1887 to 1926” there shall be substituted the words “section thirty-nine of the M76 Prison Act (Northern Ireland) 1953, with any necessary modifications”, and in subsection (3) the reference to sections thirty-nine to forty-two of the M77 Prison Act 1952, shall include a reference to sections twenty-eight to thirty-six of the M78 Prison Act (Northern Ireland) 1953.

(4) Subsection (3) of section one hundred shall not apply; and all fines imposed in proceedings taken before a court of summary jurisdiction in Northern Ireland shall be dealt with in the manner provided by section twenty of the M79 Administration of Justice Act (Northern Ireland) 1954.

[F383 (5) For the purposes of section one hundred and one the expression “maintenance order” shall include an order made under section one of the Illegitimate Children (Affiliation Orders) Act (Northern Ireland) 1924.]

(6) In subsection (4) of section one hundred and nine for the reference to [F384 the M80 Magistrates’ Courts Act 1980], there shall be substituted a reference to the Summary Jurisdiction Acts (Northern Ireland) and the rules made thereunder.

[F385 (6A) Where a financial penalty enforcement order has been registered under section 128F below by a court of summary jurisdiction in Northern Ireland in respect of any person, a justice of the peace may issue a summons to that person requiring him to appear before the court which registered that penalty or a warrant for the arrest of that person.]

[F386 (6AA) The reference in section 128E(1) to any judgment or order enforceable by a court in the United Kingdom shall include a reference to a judgment enforceable by the Enforcement of Judgments Office.]

[F387 (6B) Where a person appears before a court of summary jurisdiction in Northern Ireland in pursuance of a summons or warrant issued under subsection (6A) above, the court may exercise the like Powers as are conferred on it by [F388 Part IX of the M81 Magistrates’ Courts (Northern Ireland) Order 1981] (satisfaction and enforcement of orders).

(6C) A financial penalty enforcement order shall be registered in Norther Ireland under section 128F below in accordance with Magistrates’ Courts Rules.]

Textual Amendments

F382 Words repealed by Northern Ireland (Emergency Provisions) Act 1973 (c. 53), Sch. 5

F383 S. 124(5) repealed (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(2), Sch. 10; S.R. 1996/297, art. 2(2)

F384 Words substituted by virtue of Magistrates' Courts Act 1980 (c. 43), Sch. 8 para. 5

F385 S. 124(6A) inserted by Armed Forces Act 1976 (c. 52), s. 16, Sch. 8 para. 4(1)(3)

F386 S. 124(6AA) inserted by S.I. 1979/298, art. 2

F387 S. 124(6B)(6C) inserted by Armed Forces Act 1976 (c. 52), s. 16, Sch. 8 para. 4(1)(3)

F388 Words substituted by S.I. 1981/1675 (N.I. 26), Sch. 6 para. 10

Marginal Citations

M75 1868 c. 24.

M76 1953 c. 18 (N.I.)

M77 1952 c. 52.

M78 1953 c. 18 (N.I.)

M79 1954 c. 9 (N.I.)

M80 1980 c. 43.

M81 S.I. 1981/1675 (N.I. 26)

125 Channel Islands and Isle of Man. U.K.

[F389 (1) This Act extends to the Channel Islands and the Isle of Man subject to subsection (2) below and to such modifications as Her Majesty may by Order in Council specify; and, where any such modification refers to any law for the time being in force in any of the Channel Islands or the Isle of Man, the modification may be expressed to have effect for all purposes of this Act (and not only in the application of this Act to the Channel Islands or the Isle of Man, as the case may be).]

(2) Any reference in this Act to the United Kingdom (except the references in [F390 sections 80 and 82A] and in subsections (3) and (4) of section eighty-eight) shall be construed as including a reference to the Channel Islands and the Isle of Man [F391 and in the said section 82A, the reference to a colony shall be construed as including a reference to the Channel Islands and the Isle of Man].

F392 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F389 S. 125(1) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 24(2); S.I. 1991/2719, art. 2

F390 Words substituted by Armed Forces Act 1971 (c. 33), s. 52(2)

F391 Words added by Armed Forces Act 1971 (c. 33), s. 52(2)

F392 S. 125(3) repealed (1.1.1992) by Armed Forces Act 1991 (c. 62), ss. 24(3), 26(2), Sch. 3; S.I. 1991/2719, art.2

Modifications etc. (not altering text)

C35 S. 125 modified (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 24(5); S.I. 1991/2719, art. 2

S. 125 applied (prosp.) by 1996 c. 46, s. 36(2)(6)

126 Colonies. U.K.

(1) This section shall have effect for the purposes of the application of this Act to the colonies.

(2) Any reference in this Act to a constable shall be construed as or as including a reference to a person having the powers of a constable within a colony.

(3) Any reference in this Act to a court of summary jurisdiction, . . . F393 or to summary conviction shall be construed as a reference to a court exercising corresponding jurisdiction within a colony, to a judge or member of such a court or to conviction by such a court, as the case may be; and the reference in subsection (4) of section one hundred and nine of this Act to [F394 the M82 Magistrates’ Courts Act 1980], shall be construed as a reference to any corresponding law of a colony.

(4) Any reference in this Act to a civil prison or to the governor of such a prison shall be construed as a reference to a prison or institution in which persons sentenced by a civil court in a colony may be confined, or to the governor, superintendent or other person in charge of such a prison or institution, as the case may be.

(5) In the application to a colony of any enactment contained in Part III of this Act providing for the imposition of a fine there shall, if the law of the colony so provides, be substituted for the fine specified in that enactment such higher or lower fine as may be provided by that law; and it shall be competent for the law of any colony to declare what amount of the local currency is to be treated as equivalent to the amount of money specified in any such enactment.

Textual Amendments

F393 Words repealed by Armed Forces Act 1966 (c. 45), Sch. 5

F394 Words substituted by virtue of Magistrates' Courts Act 1980 (c. 43), Sch. 8 para. 5

Modifications etc. (not altering text)

C36 S. 126 restricted by Federation of Malaya Independence Act 1957 (c. 60), s. 2(1), Sch. 1 para. 2(1)

Marginal Citations

M82 1980 c. 43.

127 Protectorates, protected states, trust territories and federated territories. U.K.

(1) This Act shall apply in relation to any of the following, that is to say—

(a) any territory under Her Majesty’s protection;

(b) any territory for the time being administered by Her Majesty’s Government in the United Kingdom under the trusteeship system of the United Nations;

(c) any country or territory consisting of two or more of any of the following units, namely colonies, territories under Her Majesty’s protection or territories administered as aforesaid,

as it applies in relation to a colony; and references in this Act to Her Majesty’s dominions shall be construed as including references to any such territory as is described in paragraph (a) or paragraph (b) of this subsection.

(2) Any reference in this Act to the law of a colony shall include, in relation to any two or more units described in paragraph (c) of subsection (1) of this section which are under a central legislature, references to law made by that legislature.

(3) . . . F395

Textual Amendments

F395 S. 127(3) repealed by Federation of Malaya Independence Act 1957 (c. 60), Sch. 1 para. 2(1)

128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F396 U.K.

Textual Amendments

F396 S. 128 repealed by Armed Forces Act 1966 (c. 45), Sch. 5

Additional provisions as to forfeiture of pay and deductions from payF459 U.K.

[F397 128A General provisions. U.K.

(1) No forfeiture of the pay of any person subject to this Act shall be imposed unless authorised by or under this or some other Act, and no deduction from such pay shall be made unless authorised either by this or some other Act or [F398 by or under an Order in Council made under the Naval and Marine Pay and Pensions Act 1865].

(2) [F399 Such an Order in Council] shall not authorise the making of any penal deduction, that is to say, a deduction to be made by reason of the commission of any offence or other wrongful act or in consequence of any negligence.

(3) Notwithstanding subsections (1) and (2) above, [F400 and without prejudice to the power conferred on Her Majesty in Council by section 3 of the said Act of 1865] the Defence Council may by regulation, order or instruction, make provision for the making of any deduction authorised by Act, as to the time at which and the manner in which sums may be deducted from pay to give effect to authorised deductions or in which amounts may be so deducted in order to recover any fine imposed in pursuance of this Act, as to the appropriation of any such sum or amount when deducted, and for the determination of questions as to forfeitures and deductions.

(4) A person subject to this Act shall, notwithstanding any deduction from his pay but subject to any forfeiture, remain in receipt of pay at not less than such minimum rate as may be prescribed by order of the Defence Council.

(5) Notwithstanding that forfeiture of a person’s pay for any period has been imposed in pursuance of this Act, he may remain in receipt of pay at such minimum rate as aforesaid; but the amount received for that period may be recovered from him by deduction from pay.

(6) Any amount authorised to be deducted from the pay of a person subject to this Act may be deducted from any balance (whether or not representing pay) which may be due to him, and references in this Act to the making of deductions from pay shall be construed accordingly.]

Textual Amendments

F397 Ss. 128A-128E inserted by Armed Forces Act 1971 (c. 33), ss. 61(1), 78(4)(b)(5)

F398 Words substituted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1),s. 16(1), Sch. 1 para. 9(1)(a)

F399 Words substituted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 9(1)(b)

F400 Words substituted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 9(1)(c)

Modifications etc. (not altering text)

C37 S. 128A(1) modified by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 9(3)

128B Deductions for payment of civil penalties. U.K.

Where a person sentenced or ordered by a civil court (whether within or without Her Majesty’s dominions) to pay a sum by way of fine, penalty, damages, compensation or costs in consequence of his being charged before the court with an offence is at the time of the sentence or order, or subsequently becomes, a person subject to this Act, then, if the whole or any part of that sum is met by a payment made by or on behalf of any naval authority, the amount of the payment may be deducted from his pay.

128C Compensation for loss occasioned by wrongful act or negligence. U.K.

(1) Without prejudice to the provisions of this Act as to the imposition of stoppages as a punishment, the following provisions shall have effect where, after such investigation as may be prescribed by regulations of the Defence Council, it appears to the Defence Council or an officer authorised by them that any loss of, or damage to, public or service property, has been occasioned by any wrongful act or negligence of a person subject to this Act (hereafter referred to as “the person responsible”).

(2) The Defence Council or authorised officer, as the case may be, may order the person responsible (whether or not he is subject to this Act at the time when the order is made) to pay, as or towards compensation for the loss or damage, such sum as may be specified in the order; and any such sum in so far as not otherwise paid by the person responsible may be deducted from his pay.

(3) No order shall be made under subsection (2) above if, in proceedings (whether under this Act, the M83 Army Act 1955 or the M84 Air Force Act 1955) before a court-martial, the appropriate superior authority or the commanding officer of the person responsible, that person—

(a) has been acquitted in circumstances involving a finding that he was not guilty of the wrongful act or negligence in question, or

(b) has been awarded stoppages in respect of the same loss or damage;

but save as aforesaid, the fact that any such proceedings have been brought in respect of the wrongful act or negligence in question shall not prevent the making of an order or deductions under that subsection.

Marginal Citations

M83 1955 c. 18.

M84 1955 c. 19.

128D Remission of deductions. U.K.

Any deduction imposed under section 128B or 128C above, or [F401 by or under an Order in Council made under section 3 of the Naval and Marine Pay and Pensions Act 1865], may be remitted by the Defence Council or in such manner and by such authority as may be provided by an Order in Council so made.

Textual Amendments

F401 Words substituted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 9(2)

128E Deductions in respect of judgment debts etc. U.K.

(1) Where by any judgment or order enforceable by a court in the United Kingdom any sum is required to be paid by a person who is subject to this Act, the Defence Council or an officer authorised by them may, whether or not that person was subject to this Act at the time when the judgment or order was given or made, order such amount or amounts as the Council or officer think fit to be deducted from the pay of that person, and appropriated in or towards satisfaction of that sum:

Provided that this subsection shall not apply to any such sum as is mentioned in section 128B of this Act, or to any sum in respect of which deductions may be authorised by virtue of section 1(1) of the M85 Naval Forces (Enforcement of Maintenance Liabilities) Act 1947 or made by virtue of section 32(2)(b) of the M86 Courts-Martial (Appeals) Act 1968.

(2) The Defence Council or an officer authorised by them may by order vary or revoke any order previously made under this section.

(3) The sums deducted from a person’s pay by virtue of this section and section 1(1) of the M87 Naval Forces (Enforcement of Maintenance Liabilities) Act 1947 shall not together exceed such proportion of his pay as the Defence Council may determine.

Marginal Citations

M85 1947 c. 24.

M86 1968 c. 20.

M87 1947 c. 24.

[F402 128F Financial penalty enforcement orders. U.K.

(1) If—

(a) a financial penalty has been awarded against any person under this Act, and

[F403 (b) the penalty was—

(i) a fine awarded in respect of a qualifying offence (or in respect of such an offence together with other offences) on the conviction of a qualifying offence either of that person or of the person as whose parent or guardian that person is to pay the penalty; or

(ii) stoppages or a compensation order awarded in respect of a qualifying offence, (whether on the conviction of any person of the offence or on a request by any person for the offence to be taken into consideration); and]

(c) no term of imprisonment was imposed in default of payment, and

(d) no appeal is outstanding and the time provided for the giving of notice of appeal against the award has expired, and

(e) the whole or any part of the penalty remains unpaid or unrecovered, and

(f) the person against whom the award was made is a person to whom this section applies,

the Defence Council or an officer authorised by them may make an order (in this section referred to as a “financial penalty enforcement order”) for the registration of the penalty by the relevant court.

(2) This section applies to a person who

[F404 F404 (a)] is, or would be but for section 119 above, neither subject to service law nor a civilian to whom Parts I and II of this Act are applied by section 118 above, Part II of the M88 Army Act 1955 is applied by section 209 of that Act or Part II of the M89 Air Force Act 1955 is applied by section 209 of that Act. [F404 or]

[F404 (b) is subject to service law because he is a special member of a reserve force within the meaning of the Reserve Forces Act 1996.]

(3) In this section “qualifying offence” means

(a) an offence under section 14A above committed outside the United Kingdom and consisting of or including acts or omissions that would constitute a comparable foreign offence or a local road traffic offence;

(b) an offence under section 42 above;

(c) an offence under any provision of this Act other than section 42 above consisting of or including acts or omissions which would also constitute an offence under section 42 above;

and for the purposes of this definition—

• “comparable foreign offence” means an offence under the civil law of any place outside the United Kingdom which is comparable to an offence under the law of England and Wales; and

• “local road traffic offence” means an offence under the civil law of any place outside the United Kingdom relating to road traffic.

(4) A financial penalty enforcement order shall contain a certificate issued on behalf of the Defence Council or by an officer authorised by them and stating—

(a) that a financial penalty has been awarded against the person named in the order;

(b) that the conditions specified in paragraphs (b) to (f) of subsection (1) above are satisfied;

(c) the nature and amount of the penalty;

(d) the date on which and the [F405 offence or offences] in respect of which it was awarded;

(e) if it was awarded against the person named in the order as the parent or guardian of some other person, the fact that it was so awarded and the name of that other person;

(f) sufficient particulars of the case (including particulars of any offences taken into consideration at the trial);

(g) the date of any payment or recovery of a sum on account of the penalty;

(h) the sum outstanding; and

(j) the authority to whom and address to which any stoppages or compensation included in the penalty will fall, on recovery, to be remitted under subsection (7) below.

(5) A document purporting to be a financial penalty enforcement order and to be signed on behalf of the Defence Council or by an officer authorised by them shall be deemed to be such an order unless the contrary is proved, and a certificate under subsection (4) above shall be evidence of the matters stated.

(6) Subject to subsection (7) below, upon registration of a financial penalty enforcement order—

(a) service enforcement procedures shall cease to be available for the recovery of the sum certified as outstanding, and

(b) that sum shall be treated for all purposes as if it had been a fine imposed upon a conviction by the relevant court.

(7) Stoppages or compensation recovered under this section shall be remitted to the authority at the address specified in the certificate under subsection (4) above.

(8) Where it appears from a financial penalty enforcement order that the penalty was imposed in respect of more than one offence, it shall be deemed for the purposes of enforcement to be a single penalty only.

(9) Where—

(a) a financial penalty enforcement order has been made against any person, and

(b) he ceases to be a person to whom this section applies at a time when the whole or any part of the certified sum is still outstanding,

service enforcement procedures shall apply to the amount outstanding as if it were a sum payable by way of a fine imposed by a civil court.

(10) In this section—

• “financial penalty” means—

(a) a fine, including a fine imposed by virtue of paragraph 13 of Schedule 4A below;

(b) stoppages;

(c) a compensation order imposed by virtue of paragraph 11 or 13 of Schedule 4A below; . . . F406

• . . . F406

• “the relevant court” means—

(a) the magistrates’ court in England or Wales,

(b) the sheriff court in Scotland, or

(c) the court of summary jurisdiction in Northern Ireland,

within whose jurisdiction the person against whom a financial penalty enforcement order is made appears to the Defence Council or an officer authorised by them to reside or to be likely to reside;

• “service enforcement procedures” means any procedure available by virtue of any of the following enactments, namely—

(a) section 128A and section 128B above; and

(b) sections 144, 146 and 209(4) and (4A) of the M90 Army Act 1955 and the M91 Air Force Act 1955;

“stoppages” has the meaning assigned to it by section 43(1)(l) above except that it does not include sums awarded by virtue of section 128C above.]

[F407 (11) Where a fine has been awarded together with stoppages or a compensation order, this section shall have effect in relation to the fine and to the stoppages or compensation order as if they were separate penalties.]

Textual Amendments

F402 S. 128F inserted by Armed Forces Act 1976 (c. 52), s. 16, Sch. 8 paras. 1, 3

F403 S. 128F(1)(b) substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 7(2)

F404 Sub-para. (a), Word and sub-para. (b) inserted (1.1.1999) in s. 128F (2) by S.I. 1998/3086, art. 5(1)

F405 Words substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 7(3)

F406 “or” and paragraph(d) repealed by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(2), Sch. 2

F407 S. 128F(11) inserted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 7(4)

Marginal Citations

M88 1955 c. 18.

M89 1955 c. 19.

M90 1955 c. 18.

M91 1955 c. 19.

[128G F408 Avoidance of assignment of or charge on naval pay and pensions etc. U.K.

(1) Every assignment of or charge on, and every agreement to assign or charge, any pay, pensions, bounty, grants or other allowances in the nature thereof payable to any person in respect of his or any other person’s service in Her Majesty’s naval forces shall be void.

(2) Save as expressly provided by this Act, no order shall be made by any court the effect of which would be to restrain any person from receiving anything which by virtue of this section he is precluded from assigning and to direct payment thereof to another person.

(3) Nothing in this section—

(a) shall apply to the making or variation of attachment of earnings orders; or

(b) shall prejudice any enactment providing for the payment of any sum to a bankrupt’s trustee in bankruptcy for distribution among creditors.

(4) In the application of this section to Northern Ireland at any time before the coming into operation of the Insolvency (Northern Ireland) Order 1989, for the reference in subsection (3) above to a bankrupt’s trustee in bankruptcy there shall be substituted a reference to an assignee in bankruptcy.]

Textual Amendments

F408 S. 128G inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 16(1)(2); S.I. 1991/2719, art. 2

Modifications etc. (not altering text)

C38 S. 128G amended (1.1.1992) by Naval Pensions Act 1884 (c. 44), s. 2 (as amended (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 16(3); S.I. 1991/2719, art. 2)

C39 S. 128G(1) and (2) excluded (1.8.1996) by 1995 c. 26, ss. 166(5)(a), 167(4); S.I. 1996/1675, art. 3

S. 128G(1) and (2) excluded (1.8.1996) by S.I. 1995/3213 (NI 22), art. 162(4)(5)(a); S.R. 1996/284, art. 3

C40 S. 128G(1)(2) excluded (11.11.1999 for specified purposes otherwise 1.12.2000) by 1999 c. 30, ss. 44(1)(a), 89(5); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

Miscellaneous provisionsF459 U.K.

129 Jurisdiction of civil courts. U.K.

(1) Where a person subject to this Act is acquitted or convicted of an offence on trial by a court-martial or disciplinary court, or on summary trial under [F409 section 52D] of this Act, [F410 or has had an offence committed by him taken into consideration by a court-martial or disciplinary court in sentencing him] a civil court shall be debarred from trying him subsequently [F411 for the same, or substantially the same, offence]; but except as aforesaid nothing in this Act shall be construed as restricting the jurisdiction of any civil court to try a person subject to this Act for any offence.

(2) Where a person subject to this Act is acquitted or convicted of an offence on trial by a civil court [F412 wherever situated][F413 or has had an offence committed by him taken into consideration when being sentenced by a civil court in the United Kingdom], he shall not subsequently be tried under this Act [F411 for the same, or substantially the same, offence]; and no person [F414 who has been so convicted or has had an offence committed by him so taken into consideration] shall, by reason of the conviction or the offence, be subjected to any loss or forfeiture of seniority or of rate, of privilege in respect of leave, or of pay or service (other than pay and service in respect of time spent in civil custody pending trial, or while attending his trial, or while serving any sentence of imprisonment, F415 . . .detention in a Borstal institution or other detention awarded by the civil court):

Provided that nothing in this subsection shall affect the power to discharge any person from Her Majesty’s service as a person whose services are no longer required; and notwithstanding anything in this subsection a rating who would otherwise be so discharged may, on his own application, be reverted in lieu of being so discharged.

Textual Amendments

F409 Words in s. 129(1) substituted (1.4.1997 with saving) by 1996 c. 46, s. 5, Sch. 1 Pt. IV para. 93; S.I. 1997/304, art. 2 (with art. 3)

F410 Words inserted by Armed Forces Act 1971 (c. 33), s. 55(a)

F411 Words substituted by Armed Forces Act 1966 (c. 45), s. 35(1)

F412 Words inserted by Armed Forces Act 1966 (c. 45), s. 35(2)

F413 Words inserted by Armed Forces Act 1971 (c. 33), s. 55(b)

F414 Words substituted by Armed Forces Act 1971 (c. 33), s. 55(b)

F415 Words in s. 129(2) repealed (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 26(1)(2), Sch. 2 para. 11(3), Sch. 3; S.I. 1991/2719, art. 2

[F416 129A Exclusion of enactments requiring fiat of Attorney General etc. in connection with proceedings. U.K.

With the exception of [F417 section 52(3)] of this Act, no enactment requiring the fiat or consent of the Attorney General or the Director of Public Prosecutions in connection with any proceedings shall have effect in relation to proceedings under this Act.]

Textual Amendments

F416 S. 129A inserted by Armed Forces Act 1971 (c. 33), s. 45(2)

F417 Words in s. 129A substituted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 26(1), Sch. 2 para. 6(2); S.I. 1991/2719, art. 2

[F418 129B Proof of outcome of civil trial. U.K.

(1) Where a person subject to this Act has been tried before a civil court (whether at the time of the trial he was subject to this Act or not), a certificate signed by the clerk of the court stating all or any of the following matters—

(a) that the said person has been tried before the court for the offences specified in that certificate,

(b) the result of the trial,

(c) what judgment or order was given or made by the court,

(d) that other offences specified in the certificate were taken into consideration at the trial,

shall for the purposes of this Act be evidence of the matters stated in the certificate.

(2) The clerk of the court shall, if required by the commanding officer of the person in question or any other officer, furnish a certificate under this section, and shall be paid such fee as may be prescribed by regulations made by a Secretary of State.

(3) A document purporting to be a certificate under this section and to be signed by the clerk of the court shall, unless the contrary is shown, be deemed to be such a certificate.

(4) References in this section to the clerk of the court include references to his deputy, and to any other person having the custody of the records of the court.]

Textual Amendments

F418 Ss. 129B, 129C inserted by Armed Forces Act 1971 (c. 33), s. 57(1)

129C Evidence of proceedings of court-martial. U.K.

(1) The original proceedings of a court-martial purporting to be signed by the judge advocate appointed for the purposes of the court and being in the custody of a Secretary of State or of any person having the lawful custody thereof shall be admissible in evidence on production from that custody.

(2) A document purporting to be a copy of the original proceedings of a court-martial or any part thereof and to be certified by a Secretary of State or any person authorised by him, or by any other person having the lawful custody of the proceedings, to be a true copy shall be evidence of the contents of the proceedings or the part to which the document relates, as the case may be.

(3) This section applies to evidence given in any court, whether civil or criminal and whether in the United Kingdom or in any colony.

[F419 129D Forfeiture of service for desertion, and restoration of forfeited service. U.K.

(1) Where a rating of Her Majesty’s naval forces other than a reserve force is convicted of desertion, the period of his service as respects which he is convicted of having been a deserter shall be forfeited.

(2) Where any of a rating’s service is forfeited by virtue of subsection (1) above, any provision governing his terms of service other than one relating to discharge by purchase shall apply to him, and he shall be liable to serve, in like manner as if the appropriate date were the date of his entry or, as the case may be, attestation and he had on the appropriate date been duly entered or enlisted to serve for the like term (both as respects duration and as respects liability to serve in Her Majesty’s naval forces and any liability to serve in any reserve) as that for which he was in fact serving at the date of his conviction:

Provided that where at the date of his conviction the rating was serving a term ending with the expiration of the period beginning with the date of his attaining the age of eighteen years and he had attained that age when he was convicted (whether or not he had attained it when the offence was committed) the duration of the term for which he is liable to serve shall be equal to that period, and the time for which he is required to serve in Her Majesty’s naval forces shall be reduced accordingly.

(3) In subsection (2) above “the appropriate date” means in relation to any person a date earlier than the date of his conviction for desertion by the length of his service which is not forfeited.

(4) The Defence Council may by regulations make provision for the restoration in whole or in part of any forfeited service to a rating in consideration of good service or on other grounds justifying the restoration of service forfeited; and any service restored to a rating under this subsection shall be credited to him for the purpose of determining for the purposes of any provision governing his terms of service the amount of service in Her Majesty’s naval forces or in any reserve which he has served or is liable to serve.

(5) Nothing in this section shall apply to a person who deserts at a time when he is, under regulations made in pursuance of section 2 of the M92 Armed Forces Act 1966 or under any enactment repealed by any such regulations, continued in service after twenty-two years’ service.]

Textual Amendments

F419 S. 129D inserted by Armed Forces Act 1971 (c. 33), ss. 65, 78(4)(c)

Marginal Citations

M92 1966 c. 45.

[F420 129E Provision as to age. U.K.

Where the age of any person at any time is material for the purposes of any provision of this Act regulating the powers of a court-martial, his age at the material time shall be deemed to be or to have been that which appears to the court, after considering any available evidence, to be or to have been his age at that time.]

Textual Amendments

F420 S. 129E inserted by Armed Forces Act 1976 (c. 52), Sch. 9 para. 11

[F421 130 Redress of complaints. U.K.

(1) If a person subject to this Act thinks himself wronged in any matter relating to his service he may make a complaint with respect to that matter to such officer as may be prescribed.

(2) A person may not make a complaint under this section with respect to a matter against which he may present a petition under section 70 of this Act, ask for a review under section 71B of this Act or bring an appeal under the M93 Courts-Martial (Appeals) Act 1968.

(3) The procedure for making and dealing with a complaint under this section shall be laid down in Queen’s Regulations, which may, in particular, provide—

(a) for a complaint not to be made after the end of such period as may be prescribed;

(b) for any such period to be extended, in the case of a complaint made after the end of the period, in such circumstances as may be prescribed;

(c) for a complaint to be referred, for its first consideration, by the officer to whom it was made to a superior officer; and

(d) if the complainant does not obtain the redress to which he thinks he is entitled (whether from the officer who first considered the complaint or from a superior officer by virtue of provision made as mentioned in this paragraph), for the complaint to be referred to, and considered by, a superior officer.

(4) Any period prescribed for the purposes mentioned in subsection (3)(a) above shall not be less than three months beginning with the day on which the matter complained of occurred.

(5) An officer to whom a complaint is made or referred under provision made by virtue of subsection (3) above shall grant any redress which appears to him necessary.

(6) If the complainant does not obtain the redress to which he thinks he is entitled by the procedure referred to in subsection (3) above, he may submit his complaint to the Defence Council in accordance with the procedure laid down in Queen’s Regulations.

(7) The Defence Council shall have any complaint submitted to them investigated and shall grant any redress which appears to them necessary.

(8) Where a complaint by an officer has been submitted to the Defence Council and he does not obtain the redress to which he thinks he is entitled, the Defence Council shall, at his request, make a report on the complaint through the Secretary of State to Her Majesty in order to receive the directions of Her Majesty thereon.

(9) This section applies to a person who is not subject to this Act, in relation to any matter which took place while he was so subject, as it applies to a person who is subject to this Act.

(10) In this section “prescribed” means prescribed by Queen’s Regulations.]

Textual Amendments

F421 S. 130 substituted (1.10.1997) by 1996 c. 46, ss. 20(3); S.I. 1997/2164, art. 2

Modifications etc. (not altering text)

C41 S. 130: power to modify conferred (23.7.1996) by S.I. 1996/1919, art. 237

Marginal Citations

M93 1968 c. 20.

[F422 130A Indemnity for prison officers etc. U.K.

No action shall lie in respect of anything done by any person in pursuance of a sentence of imprisonment or detention awarded under this Act if the doing thereof would have been lawful but for a defect in any instrument made for the purposes of that sentence.]

Textual Amendments

F422 S. 130A inserted by Armed Forces Act 1971 (c. 33), s. 71

131 Ships under convoy. U.K.

(1) It is the duty of the master or other person for the time being in command of any vessel comprised in a convoy under the command of an officer of Her Majesty’s naval forces, or of any person appointed in that behalf with the authority of [F423 the Defence Council], to obey, in all matters relating to the navigation or security of the convoy, any directions which may be given—

(a) where the convoy is escorted by any of Her Majesty’s ships or vessels, by the commanding officer of any such ship or vessel;

(b) in any case, by the said officer or other person in command of the convoy,

and to take such precautions for avoiding the enemy as may be required by any such directions.

(2) If any such directions are not obeyed, any such commanding officer, or the said officer or other person in command of the convoy, may compel obedience by force of arms, and neither he nor any person acting under his orders shall be liable for any injury or loss of life or any damage to or loss of property resulting therefrom.

Textual Amendments

F423 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

InterpretationF459 U.K.

132 Definitions of Her Majesty’s ships, forces, etc. U.K.

(1) In this Act “Her Majesty’s ships” means commissioned ships flying the white ensign, and “Her Majesty’s vessels” means ships and vessels, other than Her Majesty’s ships, engaged in the naval service of Her Majesty, whether belonging to Her Majesty or not; but “Her Majesty’s ships” and “Her Majesty’s vessels” do not include ships or vessels of a Commonwealth country or maintained by a colony, other than ships or vessels placed at the disposal of [F424 the Defence Council] or placed at the disposal of Her Majesty for general service in the Royal Navy.

(2) In this Act “Her Majesty’s naval establishments” means establishments [F424 under the control of the Secretary of State and maintained for any purpose of the naval service], whether within or without Her Majesty’s dominions.

(3) Where persons subject to this Act are appointed or drafted to one of Her Majesty’s ships or naval establishments for duty in any or any other of Her Majesty’s ships, vessels or naval establishments, those persons shall be treated for the purposes of this Act as belonging to the ship or establishment to which they are appointed or drafted.

(4) In this Act “Her Majesty’s aircraft” means aircraft in the service of Her Majesty, whether belonging to Her Majesty or not, but does not include aircraft belonging to a Commonwealth country or to any colony other than aircraft placed at the disposal of [F424 the Defence Council] or placed at the disposal of Her Majesty for general service in the Royal Navy.

(5) In this Act “Her Majesty’s naval forces” means the Royal Navy [F425 , Queen Alexandra’s Royal Naval Nursing Service, F426 . . .] the naval reserve forces (as defined by this section) and such of the marine forces, and of the naval forces of a Commonwealth country or raised under the law of any colony, as are for the time being subject to this Act.

(6) In this Act “Her Majesty’s military forces” and “Her Majesty’s air forces” include forces raised under the law of a colony but do not include the forces of any Commonwealth country.

[F427 (7) In this Act “the marine forces” means the Royal Marines, the Royal Marines Reserve and the Royal Fleet Reserve so far as it consists of [F428 marine officers and persons who were transferred to that force from the Royal Marines or who enlisted as marines.].

[F429 (8) In this Act “naval reserve forces” means the Royal Fleet Reserve (except so far as it consists of marine officers and persons who were transferred from the Royal Marines or who enlisted as marines) and the Royal Naval Reserve.]]

Textual Amendments

F424 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F425 Words inserted by Armed Forces Act 1976 (c. 52), s. 4, Sch. 2 para. 4

F426 Words in s. 132(5) repealed (1.10.1996) by 1996 c. 46, s. 135(2), Sch. 7 Pt. III; S.I. 1996/2474, art. 2, Sch.

F427 S. 132(7)(8) substituted by Armed Forces Act 1981 (c. 55), s. 12

F428 Words in s. 132(7) substituted (1.4.1997) by 1996 c. 14, s. 131(1), Sch. 10 para. 13(a) (with s. 72(5)); S.I. 1997/305, art. 2

F429 S. 132(8) substituted (1.4.1997) by 1996 c. 14, s. 131(1), Sch. 10 para. 13(b) (with s. 72(5)); S.I. 1997/305, art. 2

133 Definitions of officer, rating and superior officer. U.K.

(1) In this Act “officer”, in relation to any of Her Majesty’s naval forces, means a person of or above the rank of cadet, and in relation to any other forces means an officer of rank corresponding to the said rank or any superior rank.

[F430 (2) In this Act “rating” means a member of Her Majesty’s naval forces of or below the rate of warrant officer; and any reference in this Act to a rating, or to a rating of any particular rate, shall include a reference to any warrant officer who is subject to this Act without being a member of those forces, and to any non-commissioned officer, marine, soldier or airman who is so subject, or, as the case may be, to any such warrant officer or non-commissioned officer of rank corresponding to that rate].

(3) In this Act “superior officer”, in relation to any person means an officer or a rating not below the rate of [F431 leading seaman], who is of rank or rate higher than that person, or senior to that person in the same rank or rate.

(4) Any reference in this Act to a specific rank or rate in Her Majesty’s naval forces includes a reference to any other rank or rate in those forces which is equivalent to that rank or rate.

(5) In this Act “corresponding rank” in relation to any rank or rate in any of Her Majesty’s naval, military or air forces, means such rank or rate in any other of those forces as may be declared by Queen’s Regulations . . . F432 for the time being in force to correspond therewith.

Textual Amendments

F430 S. 133(2) substituted by Armed Forces Act 1971 (c. 33), Sch. 3 para. 5(4)

F431 Words substituted by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 1 para. 2(4)

F432 Words repealed by S.I. 1964/488, Sch. 1 Pt. I

134 Definition of active service. U.K.

[F433 (1)] For the purposes of this Act a force shall be deemed to be on active service when engaged in operations against an enemy, when situated in an area in which such operations are taking place, or when [F434 engaged elsewhere than in the United Kingdom in operations] for the protection of life or property, and a person shall be deemed to be on active service when serving in or with a force which is on active service.

[F435 (2) Where any of Her Majesty’s naval forces is serving outside the United Kingdom, and it appears to the appropriate authority that, by reason of the imminence of active service or of the recent existence of active service, it is necessary for the public service that the force should be deemed to be on active service, the appropriate authority may declare that for such period, not exceeding three months, beginning with the coming into force of the declaration as may be specified therein that force shall be deemed to be on active service.

(3) Where it appears to the appropriate authority that it is necessary for the public service that the period specified in a declaration under subsection (2) above should be prolonged or, if previously prolonged under this subsection, should be further prolonged, the appropriate authority may declare that the said period shall be prolonged by such time, not exceeding three months, as may be specified in the declaration under this subsection.

(4) If at any time while any force is deemed to be on active service by virtue of the foregoing provisions of this section it appears to the appropriate authority that there is no necessity for the force to continue to be treated as being on active service, the appropriate authority may declare that as from the coming into operation of the declaration the force shall cease to be deemed to be on active service.

(5) Before any declaration is made under this section, the appropriate authority shall, unless satisfied that it is not possible to communicate with sufficient speed with the Secretary of State, obtain the consent of the Secretary of State to the declaration; and in any case where that consent has not been obtained before the making of a declaration under this section, the appropriate authority shall report the making thereof to the Secretary of State with the utmost practicable speed.

(6) The Secretary of State may, if he thinks fit, direct that any declaration whereby any force is deemed to be, or to continue, on active service shall cease to have effect as from the coming into force of the direction; but any direction under this subsection shall be without prejudice to anything done by virtue of the declaration before the coming into force of the direction.

(7) A declaration under this section shall have effect not only as respects the members of the force to which it relates but also as respects other persons the application to whom of any provisions of this Act depends on whether that force is on active service.

(8) In this section the expression “the appropriate authority” means, in relation to any force, the Commander-in-Chief or flag officer in operational command of that force.

(9) Any declaration or direction under this section shall come into operation on being published in local orders.]

Textual Amendments

F433 S. 134 re-numbered as s. 134(1) by Armed Forces Act 1971 (c. 33), s. 74

F434 Words substituted by Armed Forces Act 1971 (c. 33), s. 74

F435 S. 134(2)-(9) added by Armed Forces Act 1971 (c. 33), s. 74

135 General interpretation. U.K.

(1) In this Act, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say:—

• “aircraft” means any machine for flying, whether propelled by mechanical means or not, and includes any description of balloon;

• “aircraft material” includes—

(a) parts of, and components of or accessories for, aircraft, whether for the time being in aircraft or not;

(b) engines, armaments, ammunition and bombs and other missiles of any description in, or for use in, aircraft;

(c) any other gear, apparatus or instruments in, or for use in, aircraft;

(d) any apparatus used in connection with the taking-off or landing of aircraft or for detecting the movement of aircraft; and

(e) any fuel used for the propulsion of aircraft and any material used as a lubricant for aircraft or aircraft material;

• “aircraft papers” has the meaning assigned to it by the M94 Naval Prize Act 1864;

• [F436 “air signal” means any message, signal or indication given, by any means whatsoever, for the guidance of aircraft or a particular aircraft;

• “before the enemy”, in relation to a person, means that he is in action against the enemy or about to go into action against the enemy, or is under attack or threat of imminent attack by the enemy;]

• “civil court” means a court of ordinary criminal jurisdiction but does not, except where otherwise expressly provided, include any such court outside Her Majesty’s dominions;

• “civil prison” means a prison in which a person sentenced by a civil court to imprisonment can be confined;

• [F437 “the commanding officer,” in relation to a person charged with [F438 , or in custody in connection with,] an offence, has the meaning assigned to it by section 52E(1) of this Act;]

• “committal order” means an order committing a person sentenced under this Act to imprisonment or detention to any establishment in which, by virtue of subsection (1) or (2) of section eighty-one of this Act, he may be confined during the term of the sentence:

• [F439 “Commonwealth country” means Canada, the Commonwealth of Australia, New Zealand, [F440 South Africa,]India, [F441 Pakistan,] Ceylon, Ghana, Malaysia, the Republic of Cyprus, Nigeria, Sierra Leone, Tanganyika, Jamaica, Trinidad and Tobago, Uganda, Kenya, Zanzibar, Malawi, Zambia, Malta, The Gambia, Guyana, Botswana, Lesotho, Singapore, Barbados, Mauritius, Swaziland, Tonga, Fiji, the Bahamas, Bangladesh, Grenada, Seychelles, Solomon Islands, Tuvalu, Dominica, Saint Lucia, Kiribati, Saint Vincent and the Grenadines, Papua New Guinea, Western Samoa, Nauru, the New Hebrides, Zimbabwe, Belize or Antigua and Barbuda [F442 or Saint Christopher and Nevis][F443 or Brunei or Maldives][F444 or Namibia]]

• “constable” includes any person having powers corresponding with those of a constable;

• [F437 “court administration officer” and “the court administration officer” have the meanings assigned to them by section 53A of this Act;]

• “court-martial” means a court-martial under this Act;

• [F436 “damage” includes destruction, and references to damaging shall be construed accordingly;]

• “decoration” includes medal, medal ribbon, clasp and good conduct badge;

• “desertion” has the meaning assigned to it by section fifteen of this Act, and “desert” shall be construed accordingly;

• “enemy” includes all persons engaged in armed operations against Her Majesty’s forces [F445 or any forces co-operating therewith], and also includes all armed mutineers, armed rebels, armed rioters and pirates;

• “Governor”, in relation to any colony, means the Governor-General, Governor or other officer, however styled, who is for the time being administering the government of the colony . . . F446 , but where two or more colonies or the parts of any colony are under local governments and also under a central government, references to the Governor shall be construed as references to the Governor-General, Governor or other officer, however styled, who is for the time being administering the central government;

• [F447 “handles” has the same meaning as in the M95 Theft Act 1968]

• [F448 “Her Majesty’s forces” includes forces raised under the law of a colony but does not include a force of any Commonwealth country];

• [F437 “the judge advocate”, in relation to a court-martial, has the meaning assigned to it by section 53B(1) of this Act;]

• [F449 “judicial officer” means a person appointed under section 47M of this Act;]

• “mutiny” has the meaning assigned to it by section eight of this Act;

• “naval detention quarters” means premises or vessels, or parts of premises or vessels, set apart by [F450 the Defence Council] under subsection (1) of section eighty-two of this Act;

• “prize court” means a prize court within the meaning of the M96 Naval Prize Act 1864;

• “property” includes real property in England and Wales or Northern Ireland, heritable property in Scotland and property outside the United Kingdom of the nature of real property;

• [F437 “the prosecuting authority” has the meaning assigned to it by section 52H(1) of this Act;]

• “provost officer” means a naval provost marshal, an assistant to a naval provost marshal and any other officer being a provost officer within the meaning of the M97 Army Act 1955, or the M98 Air Force Act 1955;

• “public or service property” means property belonging to any department of Her Majesty’s Government in the United Kingdom or of the Government of Northern Ireland, or held for the purposes of any such department, and property belonging to or connected with Her Majesty’s naval forces, the naval forces of any Commonwealth country or naval forces raised under the law of any colony, or any part of any of those forces;

• [F451 “Queen’s Regulations” means the Queen’s Regulations for the Royal Navy;]

• [F452 “the relevant time” in relation to a person arrested under section 45 of this Act, means the time of the arrest;]

• “service law” has the meaning assigned by section eight of this Act;

• “ship papers” has the meaning assigned to it by the M99 Naval Prize Act 1864;

• [F453 “steals” has the same meaning as in the M100 Theft Act 1968, and references to “stolen goods” shall be construed as if contained in that Act]

• [F454 “the summary appeal court” means the court established by section 52FF of this Act;]

(2) Any reference in this Act to an offence under Part I thereof includes a reference to a civil offence punishable on conviction thereunder by virtue of section forty-two of this Act.

[F455 (2A) References in this Act, in relation to any of the armed forces of the Crown, to an officer holding a commission include references to a person to whom a commission is required to be issued; and for the purposes of this Act, where a commission issued to any person takes effect from a date earlier than the date of its issue, that earlier date shall be conclusively presumed to be the date on which the requirement to issue the commission arose.]

(3) Any reference in this Act to an enactment is a reference thereto as amended by or under any subsequent enactment.

(4) Any power conferred by this Act to make an Order in Council or order shall include power to vary or revoke the Order in Council or order by a subsequent Order in Council or order.

(5) Any Order in Council, order or regulations made under this Act may make different provision for different circumstances or cases, or may make provision for particular circumstances or cases only.

Textual Amendments

F436 Definitions inserted by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 1 para. 2(5)

F437 Definitions in s. 135(1) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. IV para. 94(a)-(d); S.I. 1997/304, art. 2 (with art. 3)

F438 Words in definition of“the commanding officer” in s. 135(1) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 11(a); S.I. 2000/2366, art. 2

F439 Definition of “Commonwealth country” printed as amended by enactments listed in Chronological Table of the Statutes, Belize Act 1981 (c. 52), Sch. 2 para. 1 and S.I. 1981/1105, Sch. para. 2(b)

F440 Words in the definition in s. 135(1) inserted (23.3.1995) by 1995 c. 3, s. 1, Sch.

F441 Words inserted (retrospectively: 1.10.1989) by Pakistan Act 1990 (c. 14, SIF 26:30), s. 1, Sch. para. 3

F442 Words added by S.I. 1983/882, art. 5, Sch. para. 1

F443 Words added by Brunei and Maldives Act 1985 (c. 3, SIF 26:9A), s. 1, Sch. para. 4

F444 Words in s. 135(1) added (retrospectively: 21.3.1990) by Namibia Act 1991 (c. 4), ss. 1, 2(2), Sch. para. 2

F445 Words inserted by Armed Forces Act 1966 (c. 45), s. 36(2)

F446 Words repealed by Zanibar Act 1963 (c. 55), Sch. 3

F447 Definition inserted by Theft Act 1968 (c. 60), Sch. 2 Pt. II

F448 Definition inserted by Armed Forces Act 1966 (c. 45), s. 36(1)

F449 Definition of“judicial officer” in s. 135(1) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 11(b); S.I. 2000/2366, art. 2

F450 Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F451 Definition in s. 135(1) inserted (1.10.1996) by 1996 c. 46, s. 35(1), Sch. 6 para. 12; S.I. 1996/2474, art. 2

F452 Definition of“the relevant time” in s. 135(1) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 11(c); S.I. 2000/2366, art. 2

F453 Definition substituted by Theft Act 1968 (c. 60), Sch. 2 Pt. II

F454 Definition of“the summary appeal court” in s. 135(1) inserted (2.10.200) by 2000 c. 4, s. 25, Sch. 3 para. 24; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F455 S. 135(2A) inserted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 10(2)

Marginal Citations

M94 1864 c. 25.

M95 1968 c. 60.

M96 1864 c. 25.

M97 1955 c. 18.

M98 1955 c. 19.

M99 1864 c. 25.

M100 1968 c. 60.

SupplementalF459 U.K.

136 Minor amendments. X7 U.K.

The enactments specified in the Fifth Schedule to this Act shall have effect subject to the amendments set out in the second column of that Schedule.

Editorial Information

X7 The text of s. 136 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

137 X8 Repeals and transitional provisions. U.K.

(1) . . . F456

(2) Without prejudice to the provisions of [F457 sections 16(1) and 17(2)(a) of the M101 Interpretation Act 1978] (which relate to the effect of repeals) any reference in any enactment to the Naval Discipline Act or to any provision of that Act shall be construed as, or as including, a reference to this Act or the corresponding provision of this Act.

(3) . . . F458

Editorial Information

X8 Unreliable marginal note

Textual Amendments

F456 S. 137(1) repealed by Statute Law (Repeals) Act 1974 (c. 22), Sch. Pt. XI

F457 Words substituted by virtue of Interpretation Act 1978 (c. 30), s. 25(2)

F458 S. 137(3) repealed by Statute Law (Repeals) Act 1977 (c. 18), Sch. 1 Pt. I

Marginal Citations

M101 1978 c. 30.

138 Savings. U.K.

(1) Nothing in this Act shall take away, abridge or prejudicially affect any right, power or prerogative of Her Majesty in right of Her Crown or in right of Her Office of Admiralty.

(2) The provisions of this Act specifying the classes of persons who are subject thereto shall not affect the application of this Act to any person to whom it applies by virtue of the M102 Coastguard Act 1925.

Marginal Citations

M102 1925 c. 88.

139 Short title and commencement. U.K.

(1) This Act may be cited as the Naval Discipline Act 1957.

(2) This Act shall come into force on such date as Her Majesty may by Order in Council appoint.

Subordinate Legislation Made

P1 1.1.1959 appointed under s. 139(2) by S.I. 1958/1952 (1958 II, p. 2119)