Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by the Ministry of Defence


  1.  This note provides a brief outline of the main provisions of the Armed Forces Bill. A fuller account is given in the explanatory notes published with the Bill.


  2.  Clause 1 allows the Army and Air Force Acts 1955 and the Naval Discipline Act 1957 to be extended for a further five years, until the end of 2006, subject to annual renewal by Order in Council (the continuation orders) before 31 August each year. The Select Committee on the 1976 Armed Forces Bill rejected a proposal that the system of annual continuation order debates should be dispensed with, concluding that "the possibility of debating once a year the Discipline Acts does provide a safeguard, and does ensure that in any year when there is concern about their application there may be a debate on that specific matter". The 1976 Select Committee also recommended that the Acts should in future be renewed by the summer of any particular year, in order that "there should be greater flexibility in timing the debate on any Continuation Order in the future". These recommendations were accepted by Parliament and reflected in the 1976 and subsequent Armed Forces Acts. Clause 1 continues the same procedures.


  3.  Clauses 2 to 16 propose a regime, based on that in the Police and Criminal Evidence Act 1984, for searches in the course of investigations. Among other things, this:

    —  Defines the circumstances in which a Service policeman may stop and search someone subject (or reasonably believed to be subject) to Service law and Service and certain other vehicles; and provides residual powers for commanding officers to exercise these powers, where the timely assistance of a policemen cannot be secured. In all cases, there have to be reasonable grounds for suspecting that a search will reveal items such as stolen goods or controlled drugs.

    —  Requires a Service policeman to apply for a warrant from a judicial officer, if he needs to search a Service person's home or Service living accommodation (of whatever kind, except places of custody, detention or imprisonment) in the course of an investigation; and provides a residual power for a commanding officer to authorise such a search if obtaining a warrant is not practicable. As under PACE, the power to search is limited to certain serious offences. Commanding officers will also have a more limited power to order searches in connection with such investigations using Service personnel who are not police, where no Service police are readily available. The Bill makes the commanding officer's powers subject to retrospective review by a judicial officer, if anything has been seized during the search.

    —  Defines the powers of a Service policeman (and, in more limited circumstances, others) to enter premises without a warrant for the purpose of effecting an arrest; and the powers of search exercisable following arrest.


  4.  Clause 17 proposes to allow officers in the Royal Navy to be dealt with summarily, thus bringing the Royal Navy broadly into line with the other two Services. In all three Services, the most senior rank that will be capable of being dealt with summarily will be Lieutenant Colonel or equivalent, as opposed to Major or equivalent at present. It is intended that these changes will avoid a number of the more minor alleged offences having to be tried by court martial. As part of the same package, it is intended (clause 18) to abolish the naval disciplinary courts, which were intended to provide a sort of mini-court martial for junior naval officers charged with minor offences when on active service. Such a court has not been convened within living memory, and such matters will be capable of being dealt with summarily in future.

  5.  The then Minister of State for the Armed Forces announced in 1998 the intention to extend eligibility for court martial membership to warrant officers. This followed a review set up by the previous administration, prompted by observations made by the Select Committee on the last Armed Forces Bill. Clause 19 will give effect to this change, detailing the circumstances in which warrant officers may sit on courts-martial. The principal limitation is that they will only be able to sit in cases where the accused is of subordinate rank.

  6.  Clause 20 also takes powers to make warrant officers eligible for membership of the Summary Appeal Courts (SAC) by statutory instrument, should such a change be considered desirable in the future. This was an issue raised during discussion on the Armed Forces Discipline Bill, where we took the view that it would be prudent to see how the SAC operated and to gain experience of warrant officers as court martial members, before deciding whether to extend eligibility for SAC membership to warrant officers.

  7.  Clause 21 seeks to enable the Attorney General to ask the Courts-Martial Appeal Court to review what he considers unduly lenient court martial sentences. This is intended broadly to reflect his corresponding powers in relation to sentences of the Crown Court.

  8.  The Powers of Criminal Courts (Sentencing) Act 2000 includes provisions for mandatory minimum sentences for offenders convicted for a second or third time for certain serious offences. Clause 22 seeks to replicate these provisions in the Service discipline Acts.

  9.  Crown Court trial proceedings are exempt from judicial review in the High Court, the appropriate avenue for dissatisfaction with them on the part of the defence being to appeal to the Court of Appeal. There is no equivalent exemption for court martial trial proceedings, and the Bill will seek to remedy this, in clause 23.

  10.  The Service discipline Acts make it an offence to refuse to produce a document that a court martial requires as evidence. Clause 24 will extend this provision so that it also embraces forms of evidence other than documents.

  11.  It is an offence to fail to attend courts-martial and similar proceedings as a witness, but there is no means of ensuring the attendance of witnesses who are not subject to the Acts. The absence of such witnesses can frustrate the conduct of a trial, so clause 25 seeks to provide powers to ensure their attendance. These will enable a judicial officer or judge advocate to issue a warrant for the arrest of a witness, if satisfied that the individual concerned is unlikely to attend, or in the event of actual non-attendance.

  12.  Clauses 26 to 28 seek to give Service courts powers to make orders as to costs against parties or their legal representatives where actions or omissions have resulted in another party to the case incurring unnecessary expenditure. These will reflect similar powers available to civilian courts.

  13.  Clause 29 proposes a number of minor changes to the procedures for regulating the authorisation for custody prior to and during trials, including extending these to proceedings before the Standing Civilian Court.

  14.  Clause 30 seeks a power to provide by subordinate legislation for accused to be able to apply for bail pending the outcome of appeals from Service courts. It is intended to use this power to make provisions which broadly correspond to the existing procedures in the civilian criminal justice system.


  15.  Clauses 31 and 32 will seek to extend the jurisdiction of the Ministry of Defence Police (MDP). At present, the force has jurisdiction in relation to defence land, property and personnel within the United Kingdom and its territorial waters The MDP is also able to operate on land in the vicinity of defence land where an officer of a local force has asked for assistance.

  16.  The intention in the Bill is to clarify and extend the MDP's jurisdiction, by amending the Ministry of Defence Police Act 1987. It would:

    —  Replace the existing power to act on land in the vicinity of defence land in response to a request from a member of a local force by two separate powers. First, to act on such land in furtherance of a request for policing assistance from a chief officer of a local force. This is to allow standing arrangements to be agreed at a high level under which the MDP may take on the performance for an agreed period of policing duties in an area close to defence land. Second, to allow the MDP to respond to requests for assistance in relation to individual cases or operations from an individual member of a local police, without the present restriction limiting this to the vicinity of defence land.

    —  Extend the existing jurisdiction in relation to the alleged commission of offences by defence personnel to offences against such personnel. An example of this would be an attempt to bribe defence personnel to disclose confidential information.

    —  Empower an MDP officer in uniform (or having proof of being an MDP officer) to act without a request from a Home Department police officer, if he reasonably believes that waiting for such a request would frustrate or jeopardise the purpose of his action. This would only be permitted where the MDP officer has reasonable grounds for suspecting that there has been an offence involving the use or threat of violence or where he reasonably believes that action is necessary to save life or prevent injury.

  17.  The Bill also includes other provisions intended to facilitate co-operation between the MDP and other police forces:

    —  It will provide for assistance to be given by the MDP to another police force, on the request of a chief officer, to meet any special demand on its resources.

    —  It will also provide that MDP officers serving with another force, for whatever reason, will enjoy the powers of a constable.

  18.  The Bill will provide the means of aligning the MDP's disciplinary procedures as closely as possible with those of Home Department forces. The present legislation prevents this, most significantly by reserving to the Secretary of State responsibility of key decisions on discipline. Although in practice this is exercised on his behalf, it means that disciplinary decisions have to be taken within the Ministry of Defence, whereas Home Department procedures expressly provide for the involvement of individuals outside a police force or its police authority to be involved in the disciplinary process.

  19.  Finally, in respect of the MDP, the Bill will amend the firearms legislation, to enable potential recruits to the force to use firearms without a certificate while they are being assessed under MDP supervision. As part of their assessment process, potential recruits take a firearms aptitude test. This involves "possession", which is generally unlawful without a firearms certificate.


  20.  Clause 33 will provide for a general order-making power which would allow the Secretary of State to make for the armed forces equivalent provisions to those contained in broad areas of future civilian criminal justice legislation or any existing legislation that it amends. This will enable the Services' discipline system to keep up with developments in criminal justice legislation more readily than it is able to at present, where legislative opportunities for the armed forces are generally confined to the five-yearly Armed Forces Bills.

  21.  The areas of criminal legislation which may be the subject of such equivalent provisions include the investigation of offences; powers of arrest and detention; the functions of prosecuting authorities; remand in custody or on bail; the rights and duties of accused; evidence or procedure in criminal courts; criminal courts' powers, including sentencing powers. Provisions relating to these matters may be applied to the armed forces to the extent appropriate and with any modifications that may be necessary because of the needs of the Services or differences in their system.

  22.  Although the new power will generally only apply to criminal justice legislation passed in the forthcoming or subsequent sessions, the Bill includes express provision enabling us to apply the most recent legislation concerning sentencing young offenders, which is contained in the Powers of Criminal Courts (Sentencing) Act 2000.

  23.  The armed forces' drug testing programmes, conducted on a random basis, have proved to be a useful tool in deterring and combating the use of controlled drugs, which have no place in Service life. There are no equivalent provisions to allow testing for alcohol, and it would not be appropriate to seek powers to do this on a random basis, given that alcohol does not have the same unlawful status as controlled drugs. However, clauses 34 and 35 seek a power to enable the armed forces to test for alcohol (or drugs) in certain specified circumstances. These will be where there has been an incident which has resulted in, or created the risk of, death, serious injury or serious damage, and it is considered that persons subject to Service law may have contributed to the incident or its consequences. Such persons could then be required to provide breath or urine samples to allow testing for alcohol or drugs, and it will be an offence to refuse. The results of such tests will be used to assist in the determination of the cause of the incident and, in most circumstances, to inform a subsequent Board of Inquiry in their findings. Although the test results will be excluded from use in a subsequent Service prosecution, they may be used as potential evidence in any civil prosecution, or as a basis for any subsequent Service administrative action. The underlying intention of the provision is, of course, to add to the range of measures to safeguard individuals involved in potentially hazardous duties and to discourage the inappropriate consumption of alcohol or the use of controlled drugs.

  24.  The Bill will also propose a number of miscellaneous, minor and technical changes to the legislation affecting the armed forces. These are mostly contained in schedule 7, introduced by clause 36 and include proposals to:

    —  Ensure that the anonymity afforded in civil and Service proceedings in the UK to the alleged victims of certain sexual offences is available in Service proceedings overseas.

    —  Widen the range of children of Service personnel who are eligible to be married in Service chapels, to include sons and step-children, in addition to daughters.

    —  Remove the anomaly that the bar on evidence given at Service boards of inquiry being subsequently used in Service disciplinary proceedings only applies to boards of inquiry convened by the witness's own Service (the point of the bar is to encourage candour at the inquiry).

    —  End the power to make an order under the Service discipline Acts for compensation for loss against individuals who have left the Services. The normal basis for claims (through the civil courts) will remain.

    —  Re-define the circumstances in which individuals may not use the redress of complaints procedure, to include judicial decisions on custody and the outcome of summary proceedings, where a right of appeal is now available.

    —  Increase the flexibility in the machinery for making civilian contractors accompanying the armed forces overseas subject to the Service discipline Acts.

January 2001

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