298 Removal to England and Wales following passing of custodial sentence etc
(1) If a person is outside England and Wales when—
(a) a custodial sentence is passed on him in respect of a service offence, or
(b) an order under section 214 (detention for commission of offence during currency of order) is made in respect of him,
he must as soon as practicable be removed to England and Wales.
(2) For the purposes of subsection (1), a suspended sentence of imprisonment is to be treated as passed when an order that the sentence shall take effect is made.
The governor of a prison in England or Wales must—
(a) receive any person who, in accordance with rules under section 300, has been sent to the prison; and
(b) confine that person until he is lawfully discharged or delivered over.
(1) The Secretary of State may make rules about service custody and the service of relevant sentences.
(2) The rules may in particular contain provision about—
(a) the provision, classification, regulation and management of service custody premises;
(b) the appointment, powers and duties of inspectors and visitors of service custody premises and of persons who work at such premises;
(c) the classification, treatment, employment, discipline and control of persons in service custody;
(d) the places in which persons may be required to serve sentences of service detention;
(e) the removal of persons serving relevant sentences from one place or type of custody to another;
(f) the committal of persons under relevant sentences to the appropriate establishment;
(g) the circumstances in which persons serving relevant sentences who are unlawfully at large are to be treated as not being unlawfully at large;
(h) the release (including the temporary or early release) of persons serving sentences of service detention.
(3) The rules may confer on any person—
(a) a power to use reasonable force where necessary for the purpose of carrying out a search of service custody premises or of a person in service custody;
(b) a power to seize and detain unauthorised property (as defined by the rules).
(4) The rules may contain provision in respect of the award of additional days to a person guilty of a disciplinary offence created by the rules.
(5) The rules may provide for the determination of any matter by a judge advocate, and may contain provision for and in connection with appeals against such determinations.
(6) The rules may apply (with or without modifications), in relation to service custody premises and persons detained there, any of—
(a) sections 39 to 42 of the Prison Act 1952 (c. 52) (offences by persons other than prisoners etc);
(b) section 22(2) of the Criminal Justice Act 1961 (c. 39) (harbouring escaped prisoners etc).
(7) In this section—
“relevant sentence” means—
a custodial sentence passed in respect of a service offence;
a sentence of service detention; or
an order under section 214 (detention for commission of offence during currency of order);
“service custody premises” means premises under the control of the Secretary of State for the keeping of persons in service custody.
301 Duration of sentences: persons unlawfully at large or on temporary release
(1) In calculating the period for which a person sentenced to service detention is liable to be detained, no account shall be taken of any period within subsection (3).
(2) In calculating the period for which a person on whom a custodial sentence has been passed in respect of a service offence is liable to be detained, no account shall be taken of any period within subsection (3) occurring before the person is committed to the appropriate establishment.
(3) The following periods are within this subsection—
(a) any period when the person is unlawfully at large;
(b) any period of temporary release on compassionate grounds (pursuant to rules under section 300).
(4) A person who has been temporarily released pursuant to rules under section 300 is unlawfully at large for the purposes of this section if—
(a) he was released subject to complying with a condition, and he fails to comply with the condition; or
(b) he is at large after the end of the period for which he was released.
(5) In this section—
“period when the person is unlawfully at large” means (subject to any rules made by virtue of section 300(2)(g))—
the period beginning with the day when the person becomes unlawfully at large and ending with the day when the person is taken back into custody (service or otherwise) or returns to the place where the sentence was being served; or
in relation to a person who is absent when sentenced, the period beginning with the day when the sentence is passed and ending with the day when the person is taken into custody (service or otherwise);
“period of temporary release on compassionate grounds” means the period beginning with the day after the day when the person is released and ending with the day when he is required to return to custody (or, if earlier, the day when he returns to custody).
302 Remission of certain sentences on passing of custodial sentence etc
(1) Any unserved part of any relevant sentence passed on a person is remitted by—
(a) the passing on him of a custodial sentence in respect of a service offence; or
(b) the passing on him by a civilian court in the British Islands of a sentence of imprisonment or a sentence corresponding to any other custodial sentence.
(2) In subsection (1) “relevant sentence” means—
(a) a sentence of service detention;
(b) a service supervision and punishment order; or
(c) a minor punishment.
(3) Subsection (1) applies in relation to—
(a) the making of an order under section 214 (detention for commission of offence during currency of order),
(b) the making of an order under paragraph 3 of Schedule 12 to the Sentencing Code (detention of offender subject to detention and training order for breach of supervision requirements), or
(c) the making by a civilian court in the British Islands of an order corresponding to an order within paragraph (a) or (b),
as it applies in relation to the passing of a sentence mentioned in subsection (1)(a).
(4) For the purposes of subsection (1), a suspended sentence of imprisonment or a sentence corresponding to such a sentence is to be treated as passed when an order that the sentence shall take effect is made.
303 Power of service policeman to arrest person unlawfully at large
(1) A person who has been sentenced to service detention and who is unlawfully at large—
(a) may be arrested by a service policeman; and
(b) may be taken to the place in which he is required in accordance with law to be detained.
(2) Section 301(4) (cases where persons temporarily released from service detention are unlawfully at large) applies for the purposes of this section.
(3) A person may use reasonable force, if necessary, in the exercise of a power conferred by subsection (1).
(1) In this Part any reference to a custodial sentence passed in respect of a service offence excludes any sentence passed by a civilian court in respect of such an offence.
(2) In each of sections 297(2) and 298(2) the reference to an order excludes an order made by a civilian court.
(1) If 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) “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 18 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) An 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.
(1) If 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 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) If 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 service 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) the 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 person 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.
(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) has, 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 Martial 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.
(4) The power of a court to act under subsection (2) is not affected by any enactment which requires that a minimum sentence is passed in respect of an offence or an offence of a particular description or by reference to the circumstances of an offender (whether or not the enactment also permits the court to pass a lesser sentence in particular circumstances).
(5) The power of a court to act under subsection (2) is not affected by any enactment which, in the case of a sentence which is fixed by law, requires the court to take into account certain matters for the purposes of making an order which determines, or has the effect of determining, the minimum period of imprisonment or detention which the offender must serve (whether or not the enactment also permits the court to fix a lesser period in particular circumstances).
(6) In this section, references to assisting the prosecutor are to assisting the Director or any other prosecutor.
304D Review of sentence following offer of assistance
(1) This section applies if—
(a) the Court Martial has passed a sentence on a person in respect of a service offence;
(b) the sentence for the offence is not fixed by law or, if it is, the person pleaded guilty; and
(c) the person falls within subsection (2) or (3).
(2) A person falls within this subsection if the person—
(a) received a discounted sentence in consequence of having offered, in accordance with a written agreement with the Director of Service Prosecutions (“the Director”), to give assistance to the investigator or prosecutor of an offence; and
(b) having given the assistance in accordance with the agreement, in accordance with another written agreement with the Director gives or offers to give further assistance to the investigator or prosecutor of an offence.
(3) A person falls within this subsection if the person—
(a) received a sentence which was not discounted; and
(b) in accordance with a written agreement with the Director subsequently gives or offers to give assistance to the investigator or prosecutor of an offence.
(4) The Director may at any time refer the case back to the Court Martial if—
(a) the person is still serving the sentence; and
(b) the Director thinks it is in the interests of justice to do so.
(5) The Court Martial dealing with a referral under this section must, if possible, consist of the people who were the members of the Court Martial when it passed the sentence to which the referral relates.
(6) The Court Martial may—
(a) take into account the extent and nature of the assistance given or offered; and
(b) substitute for the sentence to which the referral relates such lesser sentence as it thinks appropriate.
(7) Any part of the sentence to which the referral relates which the person has already served must be taken into account in determining when a lesser sentence imposed under this section has been served.
(8) A person in respect of whom a referral is made under this section may, with the leave of the Court Martial Appeal Court, appeal to that court against a decision of the Court Martial under this section.
(9) The Director may, with the leave of the Court Martial Appeal Court, appeal to that court against such a decision.
(10) In relation to any proceedings under this section, the Secretary of State may make regulations containing provision corresponding to any provision in Parts 2 to 4 of the Court Martial Appeals Act 1968, with or without modifications (but this is subject to subsection (11)).
(11) Regulations under subsection (10)—
(a) may not make provision corresponding to provision which may be included in regulations made by the Lord Chancellor under section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968;
(b) may confer power to make regulations corresponding to the power in section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968 only if they provide that a statutory instrument containing such regulations (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(12) Section 1(4) of the Court Martial Appeals Act 1968 (limitation on appeal from the Court Martial Appeal Court) does not prevent an appeal to the Supreme Court in accordance with regulations made under this section.
(13) Subsections (3) to (5) of section 304C apply for the purposes of this section as they apply for the purposes of that section but as if the references to subsection (2) of that section were references to subsection (6) of this section.
(14) In this section—
(a) “discounted sentence” means a sentence passed in accordance with section 304C or this section;
(b) references to assisting the prosecutor are to assisting the Director or any other prosecutor.
304E Review of sentence following failure to assist
(1) This section applies if—
(a) the Court Martial has passed a sentence on a person in respect of a service offence;
(b) the sentence for the offence is not fixed by law or, if it is, the person pleaded guilty;
(c) the person received a discounted sentence in consequence of having offered, in accordance with a written agreement with the Director of Service Prosecutions (“the Director”), to give assistance to the investigator or prosecutor of an offence; and
(d) the person fails to any extent to give assistance in accordance with the agreement.
(2) The Director may at any time refer the case back to the Court Martial if—
(a) the person is still serving the sentence; and
(b) the Director thinks it is in the interests of justice to do so.
(3) The Court Martial dealing with a referral under this section must, if possible, consist of the people who were the members of the Court Martial when it passed the sentence to which the referral relates.
(4) If the Court Martial is satisfied that the person knowingly failed to give the assistance, it may substitute for the sentence to which the referral relates such greater sentence as it thinks appropriate.
(5) A greater sentence imposed under this section must not exceed the sentence which the court would have passed but for the agreement to give assistance.
(6) Any part of the sentence to which the referral relates which the person has already served must be taken into account in determining when a greater sentence imposed under this section has been served.
(7) A person in respect of whom a referral is made under this section may, with the leave of the Court Martial Appeal Court, appeal to that court against a decision of the Court Martial under this section.
(8) The Director may, with the leave of the Court Martial Appeal Court, appeal to that court against such a decision.
(9) In relation to any proceedings under this section, the Secretary of State may make regulations containing provision corresponding to any provision in Parts 2 to 4 of the Court Martial Appeals Act 1968, with or without modifications (but this is subject to subsection (10)).
(10) Regulations under subsection (9)—
(a) may not make provision corresponding to provision which may be included in regulations made by the Lord Chancellor under section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968;
(b) may confer power to make regulations corresponding to the power in section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968 only if they provide that a statutory instrument containing such regulations (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(11) Section 1(4) of the Court Martial Appeals Act 1968 (limitation on appeal from the Court Martial Appeal Court) does not prevent an appeal to the Supreme Court in accordance with regulations made under this section.
(12) In this section—
(a) “discounted sentence” means a sentence passed in accordance with section 304C or 304D;
(b) references to assisting the prosecutor are to assisting the Director or any other prosecutor.
304F Sections 304C to 304E: statements in open court
(1) Subsections (2) and (3) apply if, in accordance with section 304C or 304D, a court passes or substitutes a lesser sentence than it would have passed if the assistance mentioned in those sections had not been given or offered (a “discounted sentence”).
(2) The court must state in open court—
(a) that it has passed or substituted a discounted sentence; and
(b) what the greater sentence would have been.
(3) If the court thinks that it would not be in the public interest to disclose that the sentence is a discounted sentence—
(a) subsection (2) does not apply;
(b) the court must give written notice of the matters specified in paragraphs (a) and (b) of that subsection to both the prosecutor and the defendant; and
(c) section 252 (duty to give reasons and explain sentence) does not apply to the extent that it would require the court to disclose that it has passed or substituted a discounted sentence.
(4) Subsection (5) applies if a court—
(a) substitutes a sentence in accordance with section 304E; and
(b) thinks that it would not be in the public interest to disclose that the person received a discounted sentence under section 304C or 304D.
(5) Section 252 (duty to give reasons and explain sentence) does not apply to the extent that it would require the court to disclose that the person received a discounted sentence.
304G Sections 304D and 304E: exclusion of public from review proceedings
(1) This section applies to—
(a) proceedings relating to a referral made under section 304D or 304E; and
(b) any other proceedings arising in consequence of such proceedings.
(2) The court in which the proceedings will be or are being heard may make such order as it thinks appropriate—
(a) to exclude a person from the proceedings;
(b) to give such directions as it thinks appropriate prohibiting the publication of any matter relating to the proceedings (including the fact that the referral has been made).
(3) The power under subsection (2)(a) does not include power to exclude—
(a) a member or officer of the court;
(b) a party to the proceedings;
(c) a prosecuting officer dealing with the proceedings;
(d) counsel or a solicitor for a party to the proceedings;
(e) a person otherwise directly concerned with the proceedings.
(4) An order under subsection (2) may be made only to the extent that the court thinks—
(a) that it is necessary to do so to protect the safety of any person; and
(b) that it is in the interests of justice.
(5) This section does not affect any other power which the court has by virtue of any rule of law or other enactment—
(a) to exclude a person from proceedings; or
(b) to restrict the publication of matters relating to proceedings.
In this Part—
(a) “sentence” includes any order made by a court when dealing with an offender in respect of an offence; and
(b) a reference to a greater or lesser sentence must be interpreted accordingly.
(1) A drug testing officer may, in order for it to be ascertained whether or to what extent a person subject to service law has or has had drugs in his body, require the person to provide a sample of his urine for analysis.
(2) A drug testing officer may not impose a requirement under subsection (1) if—
(a) he or his commanding officer is the person's commanding officer; or
(b) the sample is sought in connection with an investigation under this Act of an offence ....
(3) A person commits an offence if he fails to comply with a requirement imposed under subsection (1).
(4) In this section—
“drug” means a controlled drug as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38); and
“drug testing officer” means an officer, warrant officer or non-commissioned officer who is authorised by or in accordance with regulations made by the Defence Council for the purpose of obtaining samples for analysis for drugs.
(5) A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment ... imposed in respect of the offence must not exceed six months.
(1) The Defence Council may by regulations make provision about the obtaining of samples under section 305(1) and the analysis of such samples, including in particular provision—
(a) as to the number of samples which a person may be required to provide;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) enabling the person imposing a requirement under section 305(1) ... to specify the way in which the sample is to be provided;
(d) prescribing circumstances in which a requirement under section 305(1) ... may not be imposed;
(e) as to the equipment to be used, and the procedures to be followed, in obtaining or analysing samples;
(f) as to the qualifications and training of any persons engaged in obtaining or analysing samples.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The results of any analysis of a sample provided pursuant to a requirement imposed under section 305(1) ...are not admissible in evidence against any person in proceedings in respect of a service offence.
(4) Nothing in this Chapter limits the powers conferred by—
(za) Chapter 3A of Part 3,
(a) any provision of the Road Traffic Act 1988 (c. 52), or
(b) any provision of an order under section 113(1) of PACE which makes provision equivalent to any provision of Part 5 of PACE (questioning and treatment of persons by police),
or affects the admissibility in any proceedings of evidence obtained under those powers.
(1) A qualifying service court has jurisdiction under this section to deal with any person (“the offender”) who at a time when he is within subsection (6)—
(a) refuses to take an oath or make an affirmation when duly required by the court to do so;
(b) when a witness, refuses to answer any question which the court has lawfully required him to answer;
(c) when attending or brought before the court refuses to produce any document or other thing which is in his custody or under his control and which the court has lawfully required him to produce;
(d) intentionally interrupts the proceedings of the court or otherwise misbehaves in court; or
(e) intentionally insults or intimidates—
(i) any member of the court while that member is acting as such a member or is going to or returning from the court; or
(ii) any witness or other person whose duty it is to attend the court, while that witness or other person is attending the court or going to or returning from the court.
(2) If the offender is a person subject to service law or a civilian subject to service discipline, the court may—
(a) commit the offender to service custody for a specified period not exceeding 28 days;
(b) impose on him a fine not exceeding level 4 on the standard scale; or
(c) do both.
(3) If the offender is not a person subject to service law or a civilian subject to service discipline, the court may impose on him a fine not exceeding level 4 on the standard scale.
(4) A qualifying service court may at any time revoke an order of committal made by it under this section and, if the offender is in custody, order his discharge.
(5) The following are qualifying service courts for the purposes of this section—
(a) the Court Martial;
(b) the Summary Appeal Court;
(c) the Service Civilian Court.
(6) A person is within this subsection at any time when—
(a) he is in the United Kingdom; or
(b) he is outside the United Kingdom but is subject to service law or is a civilian subject to service discipline.
310 Power to detain before dealing with section 309 offence
(1) Where a court with power to deal with a person under section 309 does not immediately exercise that power, it may order a service policeman, an officer of a UK police force or a member of court staff to take the offender into service custody and detain him in service custody until the rising of the court.
(2) If at the end of that detention—
(a) the court considers that a decision whether to exercise that power should not be taken without a further hearing, and
(b) any of the conditions in subsection (4) is satisfied,
the court may give orders for the further detention of the offender in service custody.
(3) An authorisation of detention under subsection (2) ends not more than 48 hours after the time when the offender was first detained under subsection (1).
(4) The conditions referred to in subsection (2)(b) are—
(a) that the court is satisfied that there are substantial grounds for believing that the offender, if released from service 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) that the court is satisfied that he should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests;
(c) that the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of deciding whether the condition in paragraph (a) or (b) is met.
(5) A person may use reasonable force, if necessary, in the exercise of any power arising from an order of a court under this section.
(1) This section applies if, in relation to proceedings before a qualifying service court, a person within section 309(6) does any act (“the offence”) that would constitute contempt of court if the proceedings were before a court having power to commit for contempt.
(2) The qualifying service court, unless it has exercised any power conferred by section 309 in relation to the offence, may certify the offence—
(a) if it took place in a part of the United Kingdom, to any court of law in that part of the United Kingdom which has power to commit for contempt;
(b) if it took place outside the United Kingdom, to the High Court in England and Wales.
(3) The court to which the offence is certified may inquire into the matter, and after hearing—
(a) any witness who may be produced against or on behalf of the person, and
(b) any statement that may be offered in defence,
may deal with him in any way in which it could deal with him if the offence had taken place in relation to proceedings before that court.
(4) Where under this section a qualifying service court certifies an offence, it may not exercise any power conferred by section 309 in relation to the offence.
(5) In this section—
“qualifying service court” has the same meaning as in section 309;
“act” includes an omission and references to the doing of an act are to be read accordingly.
312 Decisions of court under section 309: making and effect
(1) Nothing in—
(a) section 149 (findings etc of the SAC), or
(b) section 160 (findings etc of the Court Martial),
applies in relation to a decision of the Summary Appeal Court or the Court Martial under any of sections 309 to 311.
(2) Any such decision is to be taken by the judge advocate.
(3) Where the Court Martial or the Service Civilian Court commits a person to service custody under section 309, it may direct that the committal shall take effect from the end of any sentence of service detention—
(a) that has been passed on the person on a previous occasion; or
(b) (in the case of the Court Martial) that the court passes on the person on the same occasion.
(4) Where the Summary Appeal Court commits a person to service custody under section 309 it may direct that the committal shall take effect from the end of any sentence of service detention that has been passed on the person on a previous occasion.
(5) A court imposing a fine under section 309 may make an order under section 251 (power to allow payment by instalments), and in relation to such a fine section 251(2) to (7) have effect as if any reference to a service compensation order were omitted.
(6) In the provisions mentioned in subsection (7)—
(a) any reference to a sentence of service detention includes a reference to a committal to service custody under section 309; and
(b) references to persons sentenced to service detention are to be read accordingly.
(7) Those provisions are—
section 294 (rank or rate while in custody pursuant to sentence);
section 296 (prohibition of detention in a prison, etc);
section 300 (service custody etc rules);
section 301 (duration of sentences: persons unlawfully at large);
section 302 (remission on passing of custodial sentence);
section 303 (arrest by service police of persons unlawfully at large);
section 318 (arrest by civilian police of persons unlawfully at large).
313 Arrest by civilian police under warrant of judge advocate
(1) Where a judge advocate is satisfied by evidence given under oath or affirmation that there are reasonable grounds for doing so, he may issue a warrant for the arrest of a person who is reasonably suspected of having committed a service offence.
(2) A warrant issued under this section—
(a) shall be addressed to an officer or officers of a UK police force or British overseas territory police force; and
(b) shall specify the name of the person for whose arrest it is issued and the offence which he is alleged to have committed.
(3) The Secretary of State may make rules with respect to the practice and procedure which is to apply in connection with warrants issued under this section.
(4) A person arrested under a warrant issued under this section must as soon as practicable be transferred to service custody.
314 Arrest by civilian police of deserters and absentees without leave
(1) A civilian policeman may arrest without a warrant a person (“a relevant suspect”) who is reasonably suspected of being a person subject to service law who has deserted or is absent without leave.
(2) If an authorised person is satisfied by evidence given under oath or affirmation that a relevant suspect is or is reasonably suspected of being within his jurisdiction, he may issue a warrant for the arrest of the relevant suspect.
(3) In subsection (2) “authorised person” means a person who has authority in a relevant territory to issue a warrant for the arrest of a person suspected of an offence.
(4) A person arrested under this section must as soon as practicable be brought before a court of summary jurisdiction in the relevant territory in which he was arrested.
(4A) In this section “civilian policeman” means an officer of a UK police force or British overseas territory police force, other than a force or body constituted in Gibraltar.
(5) In this section “relevant territory” means—
(a) England and Wales;
(b) Scotland;
(c) Northern Ireland;
(d) the Isle of Man; or
(e) a British overseas territory other than Gibraltar.
315 Deserters and absentees without leave surrendering to civilian police
(1) Where—
(a) a person surrenders to a civilian policeman as being a person subject to service law who has deserted or is absent without leave, and
(b) the surrender occurs at a place in a relevant territory which is not a police station,
he must be taken to a police station.
(2) Subsection (3) applies where a person—
(a) is brought to a police station under subsection (1), or
(b) surrenders to a civilian policeman, at a police station in a relevant territory, as being a person subject to service law who has deserted or is absent without leave.
(3) The person in charge of the police station, or a person authorised by him, must consider the case.
(4) If it appears to the person considering the case that the person who has surrendered is a person subject to service law who has deserted or is absent without leave, he may—
(a) arrange for him to be transferred to service custody;
(b) arrange for him to be brought, as soon as practicable, before a court of summary jurisdiction in the relevant territory in which the police station is situated; or
(c) release him subject to a condition that he reports, at or by such time as may be specified in the condition, to such place or person as may be so specified for the purpose of enabling him to be taken into service custody.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In this section “civilian policeman” and “relevant territory” have the same meaning as in section 314.
316 Proceedings before civilian court where person suspected of illegal absence
(1) This section applies where a person is brought before a court of summary jurisdiction in a relevant territory under section 314(4) or 315(4)(b).
(2) Subsection (3) applies if—
(a) the person admits to the court that he is a person subject to service law who has deserted or is absent without leave; or
(b) the court has in its possession evidence of a description prescribed by regulations made by the Secretary of State.
(3) Where this subsection applies—
(a) if the person is not in custody for some other cause, the court must either—
(i) arrange for him to be transferred to service custody; or
(ii) release him subject to a condition that he reports, at or by such time as may be specified in the condition, to such place or person as may be so specified for the purpose of enabling him to be taken into service custody;
(b) if the person is in custody for some other cause, the court may arrange for him to be transferred to service custody.
(4) Where subsection (3) does not apply—
(a) if the person is not in custody for some other cause, the court must release him;
(b) if the person is in custody for some other cause, the court may release him.
(5) If there is likely to be a delay before a person can be transferred to service custody under subsection (3)(a)(i) or (b), the court may commit him to be held in custody pending his transfer—
(a) in a prison,
(b) in a police station, or
(c) in any other place provided for the confinement of persons in custody,
which is situated in the relevant territory in which the court is situated.
(6) The release of a person under subsection (4) does not prevent him from being subsequently arrested under section 67, or under a warrant issued under section 313, as a person who is reasonably suspected of having committed an offence under section 8 or 9.
(7) In this section “relevant territory” has the same meaning as in section 314.
317 Warrant for the arrest of persons released under section 315(4)(c) or 316(3)(a)(ii)
(1) Where a person who is released under section 315(4)(c) or 316(3)(a)(ii) fails to comply with the condition subject to which he was released, a warrant for his arrest may be issued—
(a) where he was released under section 315(4)(c), by a judge advocate;
(b) where he was released under section 316(3)(a)(ii), by a judge advocate or by a person who is authorised to issue the warrant by the court that imposed the condition.
(2) A warrant issued under this section—
(a) shall be addressed to an officer or officers of a UK police force or British overseas territory police force; and
(b) shall specify the name of the person for whose arrest it is issued.
(3) The Secretary of State may make rules with respect to the practice and procedure which is to apply in connection with warrants issued under this section by judge advocates.
(4) A person arrested under a warrant issued under this section must as soon as practicable be transferred to service custody.
318 Arrest by civilian police of persons unlawfully at large
(1) A person who has been sentenced to service detention and who is unlawfully at large—
(a) may be arrested without a warrant by a civilian policeman; and
(b) may be taken to the place in which he is required in accordance with law to be detained.
(2) Section 301(4) (cases where persons temporarily released from service detention are unlawfully at large) applies for the purposes of this section.
(3) In this section “civilian policeman” has the same meaning as in section 314.
319 Certificates in connection with transfer to service custody etc
(1) The Secretary of State may by regulations make provision requiring a certificate to be supplied when a person—
(a) is transferred to service custody under this Chapter; or
(b) is released under section 315(4)(c) or 316(3)(a)(ii).
(2) Regulations under this section may in particular make provision with respect to—
(a) the information to be included in a certificate;
(b) the person who is to sign a certificate;
(c) the person to whom a certificate is to be supplied;
(d) the payment of a fee for the supply of a certificate.
320A Guidance on exercise of criminal jurisdiction: England or Wales
(1) The Director of Service Prosecutions and the Director of Public Prosecutions must agree a protocol regarding the exercise of concurrent jurisdiction in respect of alleged conduct of the description in subsection (2).
(2) Subsection (1) refers to conduct of a person subject to service law which—
(a) occurs when the person is in England or Wales, and
(b) is punishable by the law of England and Wales.
(3) The protocol—
(a) must give guidance as to general principles which are to be taken into account by a relevant prosecutor when considering in which jurisdiction (service or civilian) proceedings should be brought, and
(b) may give guidance as to—
(i) procedures for making decisions regarding the exercise of jurisdiction, including as to the cases in which there should be consultation between relevant prosecutors within paragraphs (a) and (b) of subsection (10), and
(ii) any other matters the Directors think appropriate for the purposes of or in connection with subsection (1).
(4) Guidance under subsection (3)(a) must be designed to promote fair and efficient justice.
(5) Where relevant prosecutors within subsection (10)(a) and relevant prosecutors within subsection (10)(b) cannot resolve a disagreement between them about the exercise of jurisdiction in a case to which guidance under this section applies, it is for the Director of Public Prosecutions to decide in which jurisdiction proceedings should be brought in that case.
(6) The Director of Service Prosecutions and the Director of Public Prosecutions may from time to time agree revisions to the protocol.
(7) Before agreeing the protocol or revisions to it under this section the Directors must consult—
(a) the Secretary of State,
(b) the Attorney General,
(c) the National Police Chiefs’ Council, and
(d) any other person the Directors think appropriate.
(8) The current version of the protocol must be published in whatever manner the Directors think appropriate.
(9) Consultation undertaken before the Armed Forces Act 2021 is passed is as effective for the purposes of subsection (7) as consultation undertaken after it is passed.
(10) In this section “relevant prosecutor” means—
(a) the Director of Service Prosecutions and any person appointed under section 365 (prosecuting officers), and
(b) the Director of Public Prosecutions, a Crown Prosecutor and any person appointed under section 5(1) of the Prosecution of Offences Act 1985 (conduct of prosecutions on behalf of the Service).
(11) But this section applies in relation to a relevant prosecutor only where that prosecutor is aware that the Court Martial has (or may have) jurisdiction to try the person in respect of the alleged conduct mentioned in subsection (1).
(12) In subsection (2)(a) a reference to England or Wales includes the territorial waters of the United Kingdom adjacent to England or Wales (as the case may be).
(13) In this section—
“conduct” means an act or omission;
“the Directors” means the Director of Service Prosecutions and the Director of Public Prosecutions (acting jointly);
“punishable” has the same meaning as in section 42 (criminal conduct).
320B Guidance on exercise of criminal jurisdiction: Scotland
(1) The Director of Service Prosecutions and the Lord Advocate must agree a protocol regarding the exercise of concurrent jurisdiction, in respect of alleged conduct of the description in subsection (2), in the cases specified in subsection (3).
(2) Subsection (1) refers to conduct of a person subject to service law which—
(a) occurs when the person is in Scotland, and
(b) constitutes an offence under the law of Scotland.
(3) The cases mentioned in subsection (1) are where—
(a) the alleged conduct also constitutes an offence under section 42 (criminal conduct), or
(b) the person mentioned in subsection (2) could on the same facts be charged with an offence under section 42 which is broadly equivalent to the offence under the law of Scotland.
(4) The protocol—
(a) must give guidance as to general principles which are to be taken into account by a relevant prosecutor when considering in which jurisdiction (service or civilian) proceedings should be brought, and
(b) may give guidance as to—
(i) procedures for making decisions regarding the exercise of jurisdiction, including as to the cases in which there should be consultation between relevant prosecutors within paragraphs (a) and (b) of subsection (11), and
(ii) any other matters the issuing authorities think appropriate for the purposes of or in connection with subsection (1).
(5) Guidance under subsection (4)(a) must be designed to promote fair and efficient justice.
(6) Where relevant prosecutors within subsection (11)(a) and relevant prosecutors within subsection (11)(b) cannot resolve a disagreement between them about the exercise of jurisdiction in a case to which guidance under this section applies, it is for the Lord Advocate to decide in which jurisdiction proceedings should be brought in that case.
(7) The Director of Service Prosecutions and the Lord Advocate may from time to time agree revisions to the protocol.
(8) Before agreeing the protocol or revisions to it under this section the issuing authorities must consult—
(a) the Secretary of State,
(b) the chief constable of the Police Service of Scotland, and
(c) any other person the issuing authorities think appropriate.
(9) The current version of the protocol must be published in whatever manner the issuing authorities think appropriate.
(10) Consultation undertaken before the Armed Forces Act 2021 is passed is as effective for the purposes of subsection (8) as consultation undertaken after it is passed.
(11) The following are “relevant prosecutors” for the purposes of this section—
(a) the Director of Service Prosecutions and any person appointed under section 365 (prosecuting officers), and
(b) any prosecutor as defined in section 307(1) of the Criminal Procedure (Scotland) Act 1995 (other than a private prosecutor).
(12) But this section applies in relation to a relevant prosecutor only where that prosecutor is aware that the Court Martial has (or may have) jurisdiction to try the person in respect of the alleged conduct mentioned in subsection (1).
(13) In subsection (2)(a) the reference to Scotland includes the territorial waters of the United Kingdom adjacent to Scotland.
(14) In this section—
“conduct” means an act or omission;
“the issuing authorities” means the Director of Service Prosecutions and the Lord Advocate (acting jointly).
320C Guidance on exercise of criminal jurisdiction: Northern Ireland
(1) The Director of Service Prosecutions and the Director of Public Prosecutions for Northern Ireland must agree a protocol regarding the exercise of concurrent jurisdiction, in respect of alleged conduct of the description in subsection (2), in the cases specified in subsection (3).
(2) Subsection (1) refers to conduct of a person subject to service law which—
(a) occurs when the person is in Northern Ireland, and
(b) constitutes an offence under the law of Northern Ireland.
(3) The cases mentioned in subsection (1) are where—
(a) the alleged conduct also constitutes an offence under section 42 (criminal conduct), or
(b) the person mentioned in subsection (2) could on the same facts be charged with an offence under section 42 which is broadly equivalent to the offence under the law of Northern Ireland.
(4) The protocol—
(a) must give guidance as to general principles which are to be taken into account by a relevant prosecutor when considering in which jurisdiction (service or civilian) proceedings should be brought, and
(b) may give guidance as to—
(i) procedures for making decisions regarding the exercise of jurisdiction, including as to the cases in which there should be consultation between relevant prosecutors within paragraphs (a) and (b) of subsection (11), and
(ii) any other matters the issuing authorities think appropriate for the purposes of or in connection with subsection (1).
(5) Guidance under subsection (4)(a) must be designed to promote fair and efficient justice.
(6) Where relevant prosecutors within subsection (11)(a) and relevant prosecutors within subsection (11)(b) cannot resolve a disagreement between them about the exercise of jurisdiction in a case to which guidance under this section applies, it is for the Director of Public Prosecutions for Northern Ireland to decide in which jurisdiction proceedings should be brought in that case.
(7) The Director of Service Prosecutions and the Director of Public Prosecutions for Northern Ireland may from time to time agree revisions to the protocol.
(8) Before agreeing the protocol or revisions to it under this section the issuing authorities must consult—
(a) the Secretary of State,
(b) the Department of Justice in Northern Ireland,
(c) the Chief Constable of the Police Service of Northern Ireland,
(d) the Attorney General for Northern Ireland, and
(e) any other person the issuing authorities think appropriate.
(9) The current version of the protocol must be published in whatever manner the issuing authorities think appropriate.
(10) Consultation undertaken before the Armed Forces Act 2021 is passed is as effective for the purposes of subsection (8) as consultation undertaken after it is passed.
(11) The following are “relevant prosecutors” for the purposes of this section—
(a) the Director of Service Prosecutions and any person appointed under section 365 (prosecuting officers), and
(b) the Director of Public Prosecutions for Northern Ireland, the Deputy Director of Public Prosecutions for Northern Ireland, a Public Prosecutor and any person appointed under section 36(2) of the Justice (Northern Ireland) Act 2002 (c. 26 (N.I.)) (exercise of functions on behalf of the Service).
(12) But this section applies in relation to a relevant prosecutor only where that prosecutor is aware that the Court Martial has (or may have) jurisdiction to try the person in respect of the alleged conduct mentioned in subsection (1).
(13) In subsection (2)(a) the reference to Northern Ireland includes the territorial waters of the United Kingdom adjacent to Northern Ireland.
(14) In this section—
“conduct” means an act or omission;
“the issuing authorities” means the the Director of Service Prosecutions and the Director of Public Prosecutions for Northern Ireland (acting jointly).
(1) Her Majesty's Inspectors of Constabulary (“the inspectors”) are to inspect, and report to the Secretary of State on, the independence and effectiveness of investigations carried out by each service police force.
(2) In this section “investigations” means investigations of matters where service offences have or may have been committed, and includes investigations outside the United Kingdom.
(3) For the purposes of subsection (1) the inspectors may—
(a) undertake such number of inspections as they think appropriate;
(b) undertake inspections when they think it appropriate; and
(c) decide which aspects of, or matters related to, investigations by a service police force are to be the subject of a particular inspection;
but this is subject to subsection (4).
(4) The Secretary of State may at any time require the inspectors to inspect, and report to the Secretary of State on, any or all of the following—
(a) the independence of investigations carried out by a particular service police force;
(b) the effectiveness of such investigations;
(c) a particular aspect of, or matter related to, such investigations.
(5) For the purposes of this section the tri-service serious crime unit is to be regarded as a service police force.
321B Inspectors' reports to be laid before Parliament
(1) The Secretary of State must lay before Parliament each report made under section 321A.
(2) The Secretary of State may exclude from a report laid before Parliament under this section any material whose publication, in the Secretary of State's opinion—
(a) would be against the interests of national security; or
(b) might jeopardise the safety of any person.
(1) The Secretary of State may by regulations make provision for the purpose of enabling the Defence Council, or persons authorised by them, to make orders for the enforcement of financial penalties by prescribed courts in England and Wales, Scotland, Northern Ireland or the Isle of Man.
(2) Regulations under this section may in particular make provision—
(a) with respect to the cases in which such orders may be made;
(b) with respect to the form and content of such orders, including the matters to be certified in such orders;
(c) with respect to the effect of such orders;
(d) conferring functions in relation to such orders on the Defence Council;
(e) for the delegation by the Defence Council of any of their functions in relation to such orders.
(3) Provision that may be made by the regulations by virtue of subsection (2)(c) includes provision—
(a) that a sum certified in such an order as outstanding is to be treated as if it had been a fine imposed on a conviction by a court specified in the order;
(aa) about the effect, where a sum is certified in such an order, of an order made by the Court Martial under—
(i) section 269A (fines: fixing of term of imprisonment for default); or
(ii) section 269B (service compensation order: maximum term of imprisonment for default);
(b) for prescribed enforcement procedures to cease to be available, or to become available, on the occurrence of prescribed events.
(4) In this section—
“financial penalty” means—
a fine or service compensation order imposed by virtue of this Act (including a fine imposed by the Court Martial or the Service Civilian Court under paragraph 11(2)(a) of Schedule 10 to the Sentencing Code by virtue of section 184 and Schedule 6A (breach etc of overseas community order) or a fine or service compensation order with respect to which an order under section 268 (order for service parent or guardian to pay fine or compensation) has been made);
a sum adjudged to be paid under section 236(3) (forfeiture of recognizance);
an order as to the payment of costs made by virtue of regulations under section 26, or made under section 27, of the Armed Forces Act 2001 (c. 19);
“prescribed” means prescribed, or of a description prescribed, by regulations under this section.
323 Power to make provision in consequence of criminal justice enactments
(1) The Secretary of State may make an order under this section if he considers it appropriate to do so in consequence of a criminal justice enactment (see section 324).
(2) An order under this section may make provision in relation to—
(a) service policemen,
(b) service courts (see section 324),
(c) persons subject to service law,
(d) civilians subject to service discipline, or
(e) service law proceedings (see section 324),
which is equivalent to that made by a relevant provision, subject to such modifications as the Secretary of State considers appropriate.
(3) In this section “relevant provision” means—
(a) the criminal justice enactment;
(b) any enactment relating to a criminal justice matter (see section 324) which is amended by the criminal justice enactment; or
(c) any subordinate legislation made under—
(i) the criminal justice enactment; or
(ii) any Act which is amended by the criminal justice enactment.
(4) An order under this section may make provision in such way as the Secretary of State considers appropriate and may, in particular—
(a) be made in relation to all or any cases to which the order-making power extends;
(b) apply the relevant provision (with or without modifications);
(c) amend, repeal or revoke any enactment or subordinate legislation (including the relevant provision and any provision of or made under this Act).
(1) In section 323 a “criminal justice enactment” means an enactment which—
(a) is contained in an Act passed after 1st January 2001; and
(b) amends the law of England and Wales relating to any criminal justice matter.
(2) In section 323 and subsection (1) “criminal justice matter” means—
(a) the powers of the police in connection with the investigation of offences or the detection of offenders;
(b) powers of arrest and detention in connection with crime or criminal proceedings;
(c) the functions of any authority in relation to criminal prosecutions;
(d) remand in custody or on bail;
(e) the rights and duties of a defendant in relation to proceedings in civilian courts;
(f) evidence or procedure in civilian courts;
(g) the powers of civilian courts, including powers in relation to sentence;
(h) such other matters relating to criminal justice as the Secretary of State may by order prescribe for the purposes of this paragraph.
(3) For the purposes of section 323, section 5 of the Criminal Justice (International Co-operation) Act 1990 (c. 5) (transfer of UK prisoner to give evidence etc overseas) is to be taken to be a criminal justice enactment.
(4) In section 323 “service court” means—
(a) the Court Martial;
(b) the Summary Appeal Court;
(c) the Service Civilian Court;
(d) the Court Martial Appeal Court; or
(e) the Supreme Court on an appeal brought from the Court Martial Appeal Court.
(5) In section 323 “service law proceedings” means proceedings under this Act or the Court Martial Appeals Act 1968 (c. 20) (and does not include proceedings relating to offences under sections 344 to 346 or under regulations made by virtue of section 328(4)(b) or 343(5)(b)).