Armed Forces Bill (HC Bill 70)

A

BILL

TO

Continue the Armed Forces Act 2006; to make provision about service
discipline; to make provision about Ministry of Defence fire-fighters; and for
connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Duration of Armed Forces Act 2006

1 Duration of Armed Forces Act 2006

(1) For section 382 of AFA 2006 (duration of AFA 2006) substitute—

382 Duration of this Act

(1) 5This Act expires at the end of one year beginning with the day on which
the Armed Forces Act 2015 is passed (but this is subject to subsection
(2)).

(2) Her Majesty may by Order in Council provide that, instead of expiring
at the time it would otherwise expire, this Act shall expire at the end of
10a period of not more than one year from that time.

(3) Such an Order may not provide for the continuation of this Act beyond
the end of the year 2021.

(4) No recommendation may be made to Her Majesty in Council to make
an Order under subsection (2) unless a draft of the Order has been laid
15before, and approved by a resolution of, each House of Parliament.”

(2) In consequence of subsection (1), omit section 1 of the Armed Forces Act 2011.

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Alcohol and drugs

2 Commanding officer’s power to require preliminary alcohol and drugs tests

(1) In the heading of Chapter 3A of Part 3 of AFA 2006 (testing for alcohol and
drugs on suspicion of offence), for “on suspicion of offence” substitute “in
5connection with a suspected offence or accident”.

(2) In section 93A of AFA 2006 (commanding officer’s power to require
preliminary tests)—

(a) before subsection (1) insert—

(A1) This section applies in the situations described in subsections
10(1) to (3C).”,

(b) in subsection (1), for “This section applies” substitute “The first
situation is”,

(c) in subsection (1)(a), for “relevant offence” substitute “safety-critical
duty offence”,

(d) 15in subsection (1)(b), for “a relevant” substitute “such an”,

(e) omit subsection (2),

(f) in subsection (3), for “This section also applies” substitute “The second
situation is”,

(g) after subsection (3) insert—

(3A) 20The third situation is where the commanding officer of a person
subject to service law or of a person who is a civilian subject to
service discipline has reasonable cause to believe that—

(a) there has been an accident involving an aircraft or a
ship; and

(b) 25at the time of the accident, the person was carrying out
an aviation function in relation to the aircraft or a marine
function in relation to the ship.

(3B) The fourth situation is where the commanding officer of a
person subject to service law or of a person who is a civilian
30subject to service discipline has reasonable cause to believe
that—

(a) there has been an accident involving an aircraft or a
ship;

(b) before the accident, the person carried out an aviation
35function in relation to the aircraft or a marine function in
relation to the ship; and

(c) it is possible that the carrying out of the function by the
person may have caused or contributed to—

(i) the occurrence of the accident;

(ii) 40any death, injury to a person, damage to
property or environmental harm resulting from
the accident; or

(iii) any risk of death or of such injury, damage or
harm created by the accident.

(3C) 45The fifth situation is where the commanding officer of a person
subject to service law or of a person who is a civilian subject to
service discipline has reasonable cause to believe that—

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(a) there has been an accident which resulted in or created
a risk of—

(i) death;

(ii) serious injury to any person;

(iii) 5serious damage to property; or

(iv) serious environmental harm;

(b) the person—

(i) was carrying out a safety-critical function at the
time of the accident; or

(ii) 10carried out a safety-critical function before the
accident; and

(c) it is possible that the carrying out of the safety-critical
function by the person may have caused or contributed
to—

(i) 15the occurrence of the accident;

(ii) the death, injury, damage or harm; or

(iii) the risk of death, injury, damage or harm.”, and

(h) in subsection (4)—

(i) at the beginning insert “Where this section applies,”, and

(ii) 20for “subsection (1) or (3) (“the suspected person”)” substitute
“subsection (1), (3), (3A), (3B) or (3C) (“the affected person”)”.

(3) After that section insert—

93AA Section 93A: interpretation

(1) In section 93A(1), “safety-critical duty offence” means—

(a) 25an offence under section 20A; or

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

(2) In section 93A(3A) and (3B)—

  • “aviation function” means a role or activity in connection with
    30aviation that is specified, or of a description specified, by
    regulations made by the Defence Council for the purposes of
    those subsections;

  • “marine function” means a role or activity in connection with a
    ship or ships that is specified, or of a description specified, by
    35regulations made by the Defence Council for the purposes of
    those subsections.

(3) The Defence Council may specify a role or activity (or description of
role or activity) under subsection (2) only if carrying it out with ability
impaired by alcohol or drugs would result in a risk of—

(a) 40death,

(b) serious injury to any person,

(c) serious damage to property, or

(d) serious environmental harm,

but this is subject to subsection (4).

(4) 45The Defence Council’s powers under subsection (2) include power to
specify a role or activity that is undertaken in preparation for, or in
connection with, the carrying out of a role or activity (or description of

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role or activity) that satisfies the test in subsection (3), either by
specifying such a role or activity generally or by specifying a particular
role or activity.

(5) For the purposes of section 93A(3A) and (3B), an accident does not
5involve an aircraft or a ship simply because it takes place on an aircraft
or ship.

(6) In section 93A(3C), references to the carrying out of a safety-critical
function are to—

(a) the performance by a person subject to service law of a duty
10specified, or of a description specified, by regulations under
section 20A(2) or of any other safety-critical duty (as defined in
section 93I); or

(b) the carrying out by a person who is a civilian subject to service
discipline, in the course of the person’s employment, of a role or
15activity which, if it were carried out by a person subject to
service law in the course of his or her duty, would be a safety-
critical duty.

(7) References in section 93A and this section to a person carrying out a
function include a failure by the person to carry out a function at a time
20when the person is responsible for carrying it out (and related
expressions are to be read accordingly).”

(4) In section 93B of AFA 2006 (preliminary breath test)—

(a) in subsection (1), at the beginning insert “In a situation described in
section 93A(1) or (3),”,

(b) 25in subsection (1)(a), for “suspected” substitute “affected”,

(c) after subsection (1) insert—

(1A) In a situation described in section 93A(3A), (3B) or (3C), a
preliminary breath test is a procedure administered by a service
policeman under which—

(a) 30the affected person provides a specimen of breath; and

(b) the specimen is used for the purpose of obtaining, by
means of an approved device, an indication of the
proportion of alcohol in the person’s breath or blood.”,
and

(d) 35in subsection (3), for “93A(2)” substitute “93A(1)(a)”.

(5) In section 93C of AFA 2006 (preliminary impairment test), in subsection (1)(a)
and (b), for “suspected” substitute “affected”.

(6) In section 93D of AFA 2006 (preliminary drug test), in subsection (1)(a), for
“suspected” substitute “affected”.

(7) 40In section 93I of AFA 2006 (definitions for the purposes of Chapter 3A of Part
3), in the definition of “safety-critical duty”, after “93A(1)” insert “,
93AA(6)(a)”.

(8) In section 373 of AFA 2006 (regulations etc)—

(a) in subsection (2) (regulations made by Defence Council), after “36,”
45insert “93AA,”, and

(b) in subsection (3)(d) (affirmative procedure), after “20A,” insert
“93AA(2),”.

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Investigation and charging

3 Duty of service policeman following investigation

(1) In section 116(2) of AFA 2006 (cases that must be referred to the Director of
Service Prosecutions following investigation by service or civilian police)—

(a) 5in paragraph (a), for “a Schedule 2 offence” substitute “a service offence
that is not a CO offence”, and

(b) in paragraph (b), for “any other service offence” substitute “a service
offence that is a CO offence”.

(2) In section 116(3) of AFA 2006 (cases that must be referred to the commanding
10officer following investigation by service or civilian police)—

(a) omit “and” at the end of paragraph (a), and

(b) after paragraph (b) insert , and

(c) section 117(5) (referral of connected cases to DSP) does
not apply,”.

(3) 15In section 116(4) of AFA 2006 (obligation to consult the Director of Service
Prosecutions about certain cases)—

(a) in paragraph (a), for “a Schedule 2 offence has or might have been
committed” substitute “a person has committed, or might have
committed, a service offence which is not one that may be dealt with at
20a summary hearing (see section 53)”, and

(b) in the words after paragraph (b), at the end insert “or section 117(5)”.

(4) In section 116(5) of AFA 2006 (interpretation of section 116)—

(a) for “For the purposes of subsections (2) and (3)” substitute “For the
purposes of this section—

(a) 25”, and

(b) at the end insert , and

(b) a service offence committed by a person is a “CO
offence” if a charge against the person in respect of the
offence is capable of being heard summarily by the
30person’s commanding officer (see section 52).”

(5) In section 117 of AFA 2006 (section 116: position where investigation is of
multiple offences or offenders), for subsection (3) substitute—

(3) Subsections (4) and (5) apply if—

(a) at least one of the cases has been, or must be, referred to the
35Director of Service Prosecutions (“the Director”) under section
116(2),

(b) a service policeman considers that there is sufficient evidence to
charge a person with a service offence in another of the cases,

(c) that case is not required to be referred to the Director under
40section 116(2), and

(d) the service policeman considers that there is, or may be, a
connection between a case falling within paragraph (a) and the
case falling within paragraph (c), whether direct or indirect, that
makes it appropriate for both cases to be referred to the
45Director.

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(4) The service policeman must consult the Director about the existence
and nature of the connection between those cases.

(5) Following that consultation, if the service policeman considers that
there is a connection described in subsection (3)(d), the service
5policeman must refer the case falling within subsection (3)(c) to the
Director.

(6) The reference in this section to there being sufficient evidence to charge
a person with a service offence is to be read in accordance with section
116(5)(a).”

(6) 10In section 118 of AFA 2006 (duty of service policeman to notify commanding
officer of referral to the Director of Service Prosecutions)—

(a) in subsection (1), after “116(2)” insert “or 117(5)”,

(b) for subsection (3) substitute—

(3) A notification under subsection (2)(a) must specify the service
15offence that the service policeman considers there is sufficient
evidence to charge A with.

(3A) Where that offence is a CO offence, the notification must—

(a) specify whether the case is referred under section 116(2)
or 117(5), and

(b) 20if the case is referred under section 116(2), specify the
circumstances that bring the case within section
116(2)(b).”,

(c) in subsection (4)(a), for “section 116(5)” substitute “section 116(5)(a)”,

(d) in subsection (4), after paragraph (a) insert—

(aa) 25any reference to a CO offence is to be read in accordance
with section 116(5)(b);”, and

(e) omit subsection (5).

(7) In section 121(1) of AFA 2006 (power of the Director of Service Prosecutions to
direct bringing of charges etc), after paragraph (a) (but before “or”) insert—

(aa) 30section 117(5) (referral of connected cases);”.

(8) In Schedule 2 to AFA 2006 (Schedule 2 offences for the purposes of Part 5), in
the shoulder reference, for “Sections 113, 116” substitute “Section 113”.

(9) In consequence of the substitution of section 117(3) of AFA 2006, omit
paragraph 5(2) of Schedule 3 to the Armed Forces Act 2011.

4 35Power of commanding officer to charge etc

(1) In section 120 of AFA 2006 (power of commanding officer to charge etc), in
subsection (5) (referral of certain cases to the Director of Service
Prosecutions)—

(a) for the words before paragraph (a) substitute “Where an officer has
40referred a case under subsection (3), the officer must also refer to the
Director of Service Prosecutions any other case—”, and

(b) omit the words following paragraph (b).

(2) In section 121(1) of AFA 2006 (power of the Director of Service Prosecutions to
direct bringing of charges etc), in paragraph (b), after “120(3)” insert “or (5)”.

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5 Power of Director of Service Prosecutions to charge etc

(1) In section 121 of AFA 2006 (power of the Director of Service Prosecutions to
direct bringing of charges etc)—

(a) in subsection (1), for “subsections (2) to (5)” substitute “subsections
5(1A) to (5)”,

(b) after subsection (1) insert—

(1A) The Director may bring a charge or charges against the person
concerned in respect of the case.

(1B) If—

(a) 10the Director brings a charge under subsection (1A), and

(b) the Service Civilian Court has jurisdiction to try the
charge,

the Director may allocate the charge for trial by that court.”,

(c) in subsection (4), after “appropriate” insert “to bring a charge under
15subsection (1A) or”,

(d) in subsection (5), after “could” insert “bring a charge under subsection
(1A) or”, and

(e) in the heading, after “to” insert “charge or”.

(2) In section 122 of AFA 2006 (charges brought at the direction of the Director of
20Service Prosecutions)—

(a) in subsection (2), for “brought as a result of such a direction” substitute
“brought by the Director of Service Prosecutions (“the Director”) under
section 121(1A) or by an officer as a result of a direction under section
121(2)”,

(b) 25in subsection (2)(a), for “the Director of Service Prosecutions allocated
it (under section 121(3))” substitute “the Director allocated it (under
section 121(1B) or (3))”, and

(c) in the heading, after “brought” insert “by or”.

(3) In the Youth Justice and Criminal Evidence Act 1999—

(a) 30in section 45A(15)(b) (reporting restrictions: when proceedings in a
service court commence), for “section 122” substitute “section 121(1A)
or 122”, and

(b) in paragraph 6(6)(a) of Schedule 7 (reporting restrictions: transitional
provision), for “section 122” substitute “section 121(1A) or 122”.

35Suspended sentences of service detention

6 Period for which sentence of service detention may be suspended

(1) In section 190 of AFA 2006 (suspension of sentence of service detention), for
subsection (2) (length of period of suspension) substitute—

(2) The operational period must be a period of not less than 3 months
40beginning with the date of the order made under this section.

(2A) The maximum length of the operational period is—

(a) where subsection (2B) applies, 24 months; and

(b) otherwise, 12 months.

(2B) This subsection applies where the order under this section is made by—

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(a) the Court Martial,

(b) the Court Martial Appeal Court, or

(c) the Supreme Court on an appeal brought from the Court
Martial Appeal Court,

5except where the order is made in circumstances in which Schedule 3A
applies (sentencing powers in cases involving election under section
129 for trial by Court Martial) or on an appeal arising out of a case in
which that Schedule applied.”

(2) The amendments made by this section apply only in relation to an order
10relating to a sentence of service detention for an offence committed on or after
the day on which they come into force.

(3) Where an offence is found to have been committed over a period of 2 or more
days, or at some time during a period of 2 or more days, it must be taken for
the purposes of subsection (2) to have been committed on the first of those
15days.

Offenders assisting investigations and prosecutions

7 Immunity from prosecution

In AFA 2006, after Part 12 insert—

“Part 12A

Offenders assisting investigations and prosecutions

304A Immunity from prosecution

(1) 20If the Director of Service Prosecutions (“the Director”) thinks that, for
the purposes of the investigation or prosecution of a relevant service
offence, it is appropriate to offer a person immunity from prosecution
for a service offence, the Director may give the person a written notice
under this subsection (an “immunity notice”).

(2) 25“Relevant service offence” means—

(a) an offence under section 42 as respects which the corresponding
offence under the law of England and Wales is an indictable
offence under that law; or

(b) any other service offence which, if committed by a person aged
3018 or over and tried by the Court Martial, is punishable with
imprisonment for more than 2 years.

(3) If a person is given an immunity notice, the person may not be tried for
a service offence of a description specified in the notice except in
circumstances specified in the notice.

(4) 35An immunity notice ceases to have effect in relation to the person to
whom it is given if the person fails to comply with any conditions
specified in the notice.”

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8 Undertakings as to use of evidence

After section 304A of AFA 2006 insert—

304B Undertakings as to use of evidence

(1) If the Director of Service Prosecutions (“the Director”) thinks that, for
5the purposes of the investigation or prosecution of a relevant service
offence, it is appropriate to offer a person an undertaking that
information will not be used against the person in service proceedings,
the Director may give the person a written notice under this subsection
(a “restricted use undertaking”).

(2) 10If a person is given a restricted use undertaking, the information
described in the undertaking must not be used against that person in
service proceedings except in the circumstances specified in the
undertaking.

(3) In subsections (1) and (2), the references to the use of information in
15service proceedings are to its use—

(a) at a summary hearing in respect of a service offence, or

(b) in proceedings in respect of a service offence before—

(i) the Court Martial;

(ii) the Service Civilian Court;

(iii) 20the Summary Appeal Court;

(iv) the Court Martial Appeal Court; or

(v) the Supreme Court on an appeal brought from the Court
Martial Appeal Court.

(4) A restricted use undertaking ceases to have effect in relation to the
25person to whom it is given if the person fails to comply with any
conditions specified in the undertaking.

(5) In this section “relevant service offence” has the same meaning as in
section 304A.”

9 Reduction in sentence

30After section 304B of AFA 2006 insert—

304C Reduction in sentence

(1) This section applies if a defendant—

(a) is convicted of a service offence following a plea of guilty in
proceedings in the Court Martial; and

(b) 35has, pursuant to a written agreement made with the Director of
Service Prosecutions, assisted or offered to assist the
investigator or prosecutor in relation to that or any other
offence.

(2) In determining what sentence to pass on the defendant, the Court
40Martial may take into account the extent and nature of the assistance
given or offered.

(3) Subsection (2) does not prevent the court from also taking account of
any other matter which it is entitled by virtue of any other enactment to
take account of for the purposes of determining the sentence.