(1) This section applies to an offence under any of sections 1 to 41, 93A, 93E, 93G, 107, 229, 232G and 266 which is such that a person who would otherwise commit the offence—
(a) does not do so if he has a lawful excuse; or
(b) does not do so if he has a reasonable excuse.
(2) In proceedings for an offence to which this section applies, the defendant is to be treated as not having had a lawful excuse or reasonable excuse (as the case may be) unless sufficient evidence is adduced to raise an issue as to whether he had such an excuse.
326 Exclusion of enactments requiring consent of Attorney General or DPP
Subject to section 61(2), no enactment requiring the consent of the Attorney General or the Director of Public Prosecutions in connection with any proceedings has effect in relation to proceedings under this Act for a service offence.
For section 5A of the Criminal Justice and Court Services Act 2000 (c. 43) (inserted by Schedule 16 to this Act) substitute—
Local probation boards and service justice
5A (1) A local probation board may, in pursuance of arrangements made with the Secretary of State, carry out activities anywhere in the world in relation to persons who are or have been subject to proceedings before the Court Martial, the Summary Appeal Court or the Service Civilian Court.
(2) Any activities carried out in relation to such persons must correspond to activities which the board is required or authorised to carry out in relation to persons who have been charged with or convicted of criminal offences.
(1) The Defence Council may by regulations make provision with respect to the enlistment of persons in the regular forces (including enlistment outside the United Kingdom).
(2) The regulations may in particular make provision—
(a) requiring the enlistment of persons in the regular forces to be undertaken by recruiting officers;
(b) as to the persons, whether or not members of the regular forces, who may be appointed as recruiting officers;
(c) prohibiting the enlistment of persons under the age of 18 without the consent of prescribed persons;
(d) deeming a person, in prescribed circumstances, to have attained (or not to have attained) that age;
(e) as to the procedure for enlistment (including requiring a recruiting officer to attest the enlistment);
(f) creating offences relating to knowingly giving false answers during the enlistment procedure;
(g) as to the approval for service of persons who have enlisted.
(3) The regulations may also in particular make provision in connection with the validity of a person's enlistment, including provision—
(a) as to when, how and on what basis the validity of a person's enlistment may be challenged;
(b) deeming a person, in prescribed circumstances, to have been validly enlisted;
(c) conferring on a person a right to discharge in prescribed circumstances;
(d) as to the status of a person until he is discharged.
(4) Where the regulations create an offence they may provide—
(a) that the offence is a service offence and is punishable by any punishment mentioned in rows 2 to 14 of the Table in section 164; or
(b) that the offence is an offence triable summarily by a civilian court in the United Kingdom and is punishable by a fine not exceeding level 1 on the standard scale.
(5) In this section and sections 329 to 331 “prescribed” means prescribed by regulations made by the Defence Council.
329 Terms and conditions of enlistment and service
(1) The Defence Council may by regulations make provision with respect to the terms and conditions of enlistment and service of persons enlisting, or who have enlisted, in the regular forces.
(2) The regulations may in particular make provision for the purposes of—
(a) specifying the duration of the term for which a person is enlisted (whether by reference to a number of years or another criterion or both);
(b) requiring any such term to be one of service with a regular force, or to be in part service with a regular force and in part service with a reserve force;
(c) enabling a person to end his service with a regular force at a prescribed time, or to transfer at a prescribed time to a reserve force;
(d) restricting a person, in consideration of the acceptance by him of any benefit or advantage, from exercising any right referred to in paragraph (c);
(e) enabling a person enlisted for a term of service of a prescribed description to be treated as if he had enlisted for a term of service of a different description;
(f) enabling a person to extend or reduce the term of his service (whether with a regular force or a reserve force, or both);
(g) enabling a person to continue in service after completion of the term of his service;
(h) enabling a person in a reserve force to re-enter service with a regular force;
(ha) enabling a person to serve with a regular force on a part-time basis;
(i) enabling a person's service with a regular force to be restricted to service in a particular area or to be subject to other geographic restrictions;
(j) requiring a person serving subject to a geographic restriction to serve without that restriction on a number of occasions not exceeding a prescribed maximum.
(3) The exercise of any right conferred on a person by virtue of subsection (2) may be made subject to prescribed conditions.
(3A) A right conferred on a person by virtue of subsection (2)(ha) to (j) may be varied, suspended or terminated in prescribed circumstances.
(4) The Defence Council may also by regulations make provision enabling—
(a) a member of the regular army of or below the rank of warrant officer, or
(b) a member of the Army Reserve of or below the rank of warrant officer who is in permanent service on call-out under any provision of the Reserve Forces Act 1980 (c. 9) or the Reserve Forces Act 1996 (c. 14),
to be transferred between corps without his consent in prescribed circumstances.
(5) Regulations under subsection (4) may in particular make provision for varying the terms and conditions of service of a person transferred between corps.
(6) In this section “corps” means any body of the regular army that may from time to time be declared by Royal Warrant to be a corps.
330 Desertion and absence without leave: forfeiture of service etc
(1) The Defence Council may by regulations make provision—
(a) with respect to the making of a confession by a member of the regular forces that he is guilty of an offence under section 8 (desertion);
(b) for the making of a determination as to whether a trial may be dispensed with in the case of a person who makes such a confession;
(c) for the forfeiture of a period of service of such a person where a trial is so dispensed with.
(2) The Defence Council may also by regulations make provision for the forfeiture of a period of service of a member of the regular forces who is convicted of an offence under section 8.
(3) Regulations under subsection (1) or (2) may include provision for enabling a determination to be made in prescribed circumstances restoring (in whole or in part) a forfeited period of service.
(4) The Defence Council may also by regulations make provision with respect to—
(a) the issue of a certificate of absence in respect of a member of the regular forces absent without leave for more than a prescribed period;
(b) the effects of such a certificate (in particular in connection with the pay and allowances of the person in respect of whom it is issued).
331 Discharge etc from the regular forces and transfer to the reserve forces
(1) The Defence Council may by regulations make provision with respect to—
(a) the discharge of members of the regular forces of or below the rank or rate of warrant officer;
(b) the transfer of such persons to the reserve forces.
(2) The regulations may in particular make provision with respect to—
(a) authorisation of a person's discharge or transfer to a reserve force;
(b) the status of a person who is entitled to be, but has not yet been, discharged or transferred to a reserve force.
(3) The regulations may also in particular make provision conferring on a warrant officer (other than an acting warrant officer) a right to be discharged—
(a) following his reduction in rank or rate; or
(b) following his reduction in rank or rate in prescribed circumstances.
(4) The regulations may also in particular make provision enabling—
(a) the discharge of a person from the regular forces (including by virtue of subsection (3)), or
(b) the transfer of a person to a reserve force,
to be postponed in prescribed circumstances.
(1) The rank or rate of a warrant officer or non-commissioned officer may be reduced only by an order made by that person's commanding officer.
(2) An order of a commanding officer reducing the rank or rate of a warrant officer or non-commissioned officer (“an order reducing rank or rate”)—
(a) may not be made without the permission of higher authority (but this is subject to subsection (3));
(b) may not reduce the rank of a person in any of Her Majesty's air forces below the highest rank that person has held in that force as an airman.
(3) The permission of higher authority is not required for an order reducing rank or rate if—
(a) the person whose rank is to be reduced is a lance corporal or lance bombardier; or
(b) the commanding officer making the order is of or above the rank of rear admiral, major-general or air vice-marshal.
(5) Nothing in this section applies to a reduction in rank or rate by virtue of a sentence.
(6) Nothing in this section applies in relation to the reversion of a person, otherwise than on account of his conduct, from his acting rank or rate to his substantive rank or rate.
(1) Her Majesty may by warrant make provision with respect to pay, bounty and allowances for members of the regular or reserve forces.
(2) A Royal Warrant made under this section may in particular—
(a) provide for the way in which pay, bounty and allowances are to be paid;
(b) impose conditions or restrictions on the making of such payments;
(c) confer a discretion on any person.
(3) Provision that may be made by virtue of subsection (2)(b) includes in particular provision authorising the making of a deduction from a payment to a person—
(a) in respect of anything (including any service) supplied to him;
(b) in order to recover any overpayment or advance; or
(c) in order to reclaim any relevant payment.
(4) For the purposes of subsection (3)(c) a payment is “relevant” if—
(a) it was made on condition that it would or might be repayable in specified circumstances; and
(b) any such circumstance has occurred.
(5) A Royal Warrant under this section may not authorise the forfeiture of pay.
(6) A Royal Warrant under this section may not make provision about money distributable under the Naval Agency and Distribution Act 1864 (c. 24).
(7) Section 373(5) (power to make supplementary provision etc) applies in relation to Royal Warrants under this section.
(8) A Royal Warrant under this section may be amended or revoked by a further Royal Warrant under this section.
(9) Nothing in this section prevents provision as to rates of allowances from being made otherwise than under this section.
(1) An alien may not be a member of—
(a) the regular forces; or
(b) any of Her Majesty's forces raised under the law of a British overseas territory other than Gibraltar.
(2) But the Defence Council may make regulations providing for subsection (1) not to apply to an alien who satisfies prescribed conditions.
(3) Such a condition may require the alien—
(a) to be of a prescribed nationality; and
(b) to serve in a prescribed unit.
(4) Section 3 of the Act of Settlement (1700 c. 2) does not prevent any person from being a member of any of Her Majesty's forces.
(5) In this section “prescribed” means prescribed by regulations made by the Defence Council.
(1) If a person subject to service law thinks himself or herself wronged in any matter relating to his or her service, the person may make a complaint about the matter.
(2) If a person who has ceased to be subject to service law thinks himself or herself wronged in any matter relating to his or her service which occurred while he or she was so subject, the person may make a complaint about the matter.
(3) In this Part, “service complaint” means a complaint made under subsection (1) or (2).
(4) A person may not make a service complaint about a matter of a description specified in regulations made by the Secretary of State.
340B Procedure for making a complaint and determining admissibility
(1) The Defence Council may make regulations (referred to in this Part as “service complaints regulations”) about the procedure for making and dealing with a service complaint.
(2) Service complaints regulations must make provision—
(a) for a service complaint to be made to an officer of a specified description;
(b) about the way in which a service complaint is to be made (including about the information to be provided by the complainant);
(c) that a service complaint may not be made, except in specified circumstances, after the end of the specified period.
“Specified” means specified in the regulations.
(3) The period referred to in subsection (2)(c) must be at least three months beginning with the day on which the matter complained of occurred.
(4) Service complaints regulations must make provision—
(a) for the officer to whom a service complaint is made to decide whether the complaint is admissible and to notify the complainant of that decision;
(b) for the Armed Forces Commissioner, on an application by the complainant, to review a decision by the officer to whom a service complaint is made that the complaint is not admissible;
(c) for securing that the Commissioner’s decision in relation to admissibility, on such a review, is binding on the complainant and the officer to whom the complaint was made.
(5) For the purposes of subsection (4), a service complaint is not admissible if—
(a) the complaint is about a matter of a description specified in regulations made under section 340A(4),
(b) the complaint is made after the end of the period referred to in subsection (2)(c) and the case is not one in which circumstances referred to in that provision apply, or
(c) the complaint is not admissible on any other ground specified in service complaints regulations.
(6) Nothing in this Part with respect to the provision that must or may be made by service complaints regulations is to be taken as limiting the generality of subsection (1).
(1) Service complaints regulations must provide for the Defence Council to decide, in the case of a service complaint that is found to be admissible, whether the complaint is to be dealt with—
(a) by a person or panel of persons appointed by the Council, or
(b) by the Council themselves.
(2) The regulations must provide for the person or panel appointed to deal with the complaint or (in a subsection (1)(b) case) the Defence Council—
(a) to decide whether the complaint is well-founded, and
(b) if the decision is that the complaint is well-founded—
(i) to decide what redress (if any), within the authority of (as the case may be) the person, the persons on the panel or the Defence Council would be appropriate, and
(ii) to grant any such redress.
(3) The Defence Council must not appoint a person or panel to deal with a service complaint unless—
(a) the person is, or all the persons on the panel are, authorised by the Council to decide the matters mentioned in subsection (2) and to grant appropriate redress, or
(b) the Council propose to authorise that person or those persons for those purposes.
(4) Provision made by virtue of subsection (1) is subject to regulations made under section 340E(1) (eligibility for appointment, requirements relating to independent decision-making, etc).
(1) Service complaints regulations must make provision enabling the complainant in relation to a service complaint to appeal to the Defence Council against a decision on the complaint, where the decision was taken by a person or panel appointed by virtue of section 340C(1)(a).
(2) The regulations may make provision—
(a) about the way in which an appeal is to be brought (including about the information to be provided by the complainant);
(aa) restricting the grounds on which an appeal against a decision on a complaint (or on a complaint of a description specified in the regulations) may be brought;
(b) that an appeal may not be brought, except in circumstances specified in the regulations, after the end of the period so specified;
(c) requiring the Defence Council to decide any question relating to whether an appeal has been brought before the end of the period referred to in paragraph (b) or (if not) whether circumstances referred to in that paragraph apply;
(ca) requiring the Defence Council to decide any question relating to whether an appeal has been brought on valid grounds;
(d) requiring the Defence Council to decide whether an appeal is to be determined—
(i) by a person or panel of persons appointed by the Council, or
(ii) by the Council themselves.
(3) The period referred to in subsection (2)(b) must be at least two weeks beginning with the day on which the complainant received notification of the decision appealed against.
(4) The Defence Council must not appoint a person or panel to determine an appeal unless—
(a) the person is, or all the persons on the panel are, authorised by the Council to determine the appeal and to grant appropriate redress, or
(b) the Council propose to authorise that person or those persons for those purposes.
(5) Provision made by virtue of subsection (2)(d) is subject to regulations made under section 340E(1) (eligibility for appointment, requirements relating to independent decision-making, etc).
(6) Service complaints regulations must make provision—
(a) for the Armed Forces Commissioner, on an application by the complainant, to review a decision by the Defence Council that an appeal cannot be proceeded with because—
(i) it was not brought before the end of the period referred to in subsection (2)(b), and
(ii) the case is not one in which circumstances referred to in that provision apply;
(aa) for the Armed Forces Commissioner, on an application by the complainant, to review a decision by the Defence Council that an appeal cannot be proceeded with because it was not brought on a valid ground;
(b) for securing that the decision of the Commissioner, on a review such as is mentioned in paragraph (a) or (aa), is binding on the complainant and the Defence Council.
340E Further provision about persons and panels deciding service complaints etc
(1) The Secretary of State may by regulations—
(a) provide that persons of a specified description may not be appointed by virtue of section 340C(1)(a) or 340D(2)(d) (whether or not as part of a panel);
(b) require the Defence Council, in relation to any service complaint of a specified description, to act by virtue of section 340C(1)(a) or 340D(2)(d) so as to appoint—
(i) a person who is independent, or of a specified description, or both;
(ii) a panel that satisfies one or more of the requirements listed in subsection (2).
(2) Those requirements are—
(a) all of the members of the panel must be independent;
(b) the panel must include at least a specified number or proportion of independent members;
(c) the panel must include a person of a specified description.
(3) Where a requirement within subsection (2)(b) has effect, the regulations may also require specified functions of the panel to be exercised by the independent members of the panel.
(4) For the purposes of this section, a person (including a member of a panel) is independent if the person—
(a) is not a member of the regular or reserve forces or employed in the civil service of the State, and
(b) is included in a list maintained for the purposes of this section by the Secretary of State.
(5) In this section, “specified” means specified in the regulations.
340F Investigation of complaints and delegation of Defence Council functions
(1) The Defence Council may authorise a person to investigate a particular service complaint—
(a) on the Council's behalf, or
(b) on behalf of a person or panel of persons appointed to deal with a service complaint or to determine an appeal relating to a service complaint.
(2) Service complaints regulations may authorise the Defence Council to delegate to any person, to such extent and subject to such conditions as the Council consider appropriate, any of the Council's functions under the preceding provisions of this Part.
(3) Subsection (2) does not apply to—
(a) the Defence Council's function of making service complaints regulations,
(b) the Council's function of dealing with a service complaint or determining an appeal, or
(c) any function of the Council by virtue of section 340C(3)(b) or 340D(4)(b) in connection with authorising a person to make decisions or determinations and to grant redress.
(4) Subsection (2) does not affect the application of section 1(5) or (7) of the Defence (Transfer of Functions) Act 1964 (discharge by Service Boards of Defence Council functions) in relation to the Defence Council's functions under the preceding provisions of this Part.
(1) Service complaints regulations may—
(a) impose time limits for taking any step (in addition to any time limit for which this Part provides);
(b) specify circumstances in which a time limit does not apply;
(c) make provision about the consequences of not taking a step within a time limit.
(2) The provision that may be made by virtue of subsection (1)(c) in relation to a particular time limit includes provision authorising a person specified in the regulations to decide that a service complaint, or an appeal against a decision on a service complaint, cannot be proceeded with because of a failure to take a step within that time limit.
(3) Where service complaints regulations make provision referred to in subsection (2), the regulations may also make provision—
(a) for the Armed Forces Commissioner, on an application by the complainant, to review a decision that a service complaint or an appeal cannot be proceeded with because of the failure to take the step within the time limit;
(b) for securing that the Commissioner’s decision on such a review is binding on the complainant and the person who made the decision to which the review relates.
340H Commissioner investigations of service complaints
(1) The Armed Forces Commissioner may, on an application to the Commissioner by a person within subsection (2), investigate—
(a) a service complaint, where the Commissioner is satisfied that the complaint has been finally determined;
(b) an allegation of maladministration in connection with the handling of a service complaint (including an allegation of undue delay), where the Commissioner is satisfied that the complaint has been finally determined;
(c) an allegation of undue delay in the handling of a service complaint which has not been finally determined;
(d) an allegation of undue delay in the handling of a relevant service matter.
(2) The following persons are within this subsection—
(a) in a case relating to a service complaint, the complainant;
(b) in a case relating to a matter in respect of which a service complaint has not been made, the person who raised the matter,
and, in relation to a case mentioned in paragraph (b), references in the remainder of this Part to the complainant and to a service complaint are to be read respectively as references to the person and the matter mentioned in that paragraph.
(3) For the purposes of subsection (1)(d)—
(a) “relevant service matter” means a matter of a kind about which a service complaint—
(i) may be made, whether or not at the time of the application to the Commissioner such a complaint has been made, or
(ii) could have been made (but for provision made by virtue of section 340B(2)(c));
(b) the reference to the handling of a matter is to its handling before the making of a service complaint (if any) about the matter.
(4) An application to the Commissioner—
(a) must be made in writing,
(b) must specify the kind (or kinds) of investigation which the complainant wishes the Commissioner to carry out (an investigation under a particular paragraph of subsection (1) being a “kind” of investigation for this purpose), and
(c) must contain any other information specified in regulations made by the Secretary of State.
(5) For the purposes of this section, a service complaint has been finally determined where—
(a) a decision has been made, in accordance with service complaints regulations made by virtue of section 340C, on the complaint or the complaint to which the allegation of maladministration relates, and
(b) if the decision is one in respect of which service complaints regulations made by virtue of section 340D enable an appeal to be made, an appeal against the decision has been made and determined.
(5A) A decision on a service complaint is not to be taken to fall within subsection (5)(b) if the complainant does not have grounds (of which the complainant is aware) on which the complainant is entitled to bring an appeal against the decision.
(6) The purpose of an investigation is—
(a) in the case of an investigation under subsection (1)(a), to decide whether the complaint is well-founded and, if so, to consider what redress (if any) would be appropriate;
(b) in the case of an investigation under subsection (1)(b), (c) or (d), to decide—
(i) whether the allegation is well-founded, and
(ii) if so, whether the maladministration or undue delay to which the allegation relates has or could have resulted in injustice being sustained by the complainant.
(7) The power to carry out an investigation under subsection (1)(a) or (b) includes power to investigate any maladministration in connection with the handling of the service complaint where it becomes apparent to the Commissioner during the course of an investigation that any such maladministration may have occurred.
(8) The Secretary of State may by regulations provide that an application in respect of a service complaint that has been finally determined may not be made to the Commissioner, except in circumstances specified in the regulations, after the end of the period specified in the regulations.
(9) The period referred to in subsection (8) must be at least two weeks beginning with the relevant date (see subsection (9A)).
(9A) For the purposes of subsection (9) “the relevant date” in relation to a service complaint that has been finally determined is—
(a) where the service complaint falls within subsection (5)(b), the date on which the complainant is notified of the determination of the appeal;
(b) where the decision on the service complaint does not fall within subsection (5)(b)—
(i) if the conditions in subsection (9B) are met, the date of the final invalidity decision;
(ii) otherwise, the date of the decision on the service complaint.
(9B) The conditions mentioned in subsection (9A)(b)(i) are that—
(a) the complainant brings an appeal against the decision on the service complaint;
(b) the Defence Council decides that the appeal cannot be proceeded with because (and only because) it was not brought on a valid ground;
(c) on any review of that decision of the Defence Council in accordance with regulations made by virtue of section 340D(6)(aa), the decision is upheld.
(9C) In subsection (9A)(b) “the date of the final invalidity decision” means—
(a) if the complainant does not apply for a review by the Armed Forces Commissioner of the decision mentioned in subsection (9B)(b), the date on which the Defence Council notifies the complainant of that decision;
(b) if the complainant does apply for such a review, the date on which the Armed Forces Commissioner notifies the complainant that the appeal cannot be proceeded with because it was not brought on a valid ground.
(10) It is for the Commissioner to determine whether an application has been made in accordance with this section.
(11) Where the Commissioner has carried out an investigation under subsection (1)(a) or (b) in relation to a service complaint, the Commissioner may not investigate a subsequent application relating to the same complaint except in circumstances specified in regulations made by the Secretary of State.
340I Procedure on Commissioner investigations of service complaints
(1) It is for the Armed Forces Commissioner to determine—
(a) whether to begin, continue or discontinue an investigation under section 340H;
(b) whether to investigate a service complaint, or an allegation, as a whole or only in particular respects.
(2) The Secretary of State may make regulations about the procedure to be followed in an investigation under section 340H.
(3) Subject to subsection (2), the procedure for carrying out an investigation under section 340H is to be such as the Commissioner considers appropriate in the circumstances.
(4) In particular, the Commissioner may make such inquiries as the Commissioner considers appropriate.
(5) The Secretary of State may by regulations—
(a) impose time limits for the taking by the Commissioner or the complainant of any step specified in the regulations;
(b) specify circumstances in which a time limit does not apply.
(6) Where—
(a) the Commissioner carries out an investigation under section 340H(1)(b) in connection with the handling of a service complaint, and
(b) before the complaint was made, the matter to which it relates was considered in accordance with a process for dealing with matters of that kind,
the Commissioner may for the purposes of the investigation consider any alleged maladministration in connection with that process.
340IA Commissioner investigations of general service welfare matters
(1) The Armed Forces Commissioner may investigate such general service welfare matters as the Commissioner considers appropriate, subject to subsection (5).
(2) A “general service welfare matter” is a matter which, in the Commissioner’s opinion—
(a) arises in connection with the ongoing service of persons subject to service law, and
(b) may materially affect the welfare of those persons or relevant family members.
(3) The Commissioner must consider any request made by a person subject to service law or a relevant family member to carry out an investigation under this section.
(4) “Relevant family members” means such descriptions of persons connected with a person subject to service law as may be specified.
(5) The Commissioner may not under this section investigate—
(a) a particular service complaint (see instead section 340H);
(b) a matter which is or was the subject of a service inquiry (see section 343);
(c) a matter which is or was the subject of a criminal investigation or criminal proceedings;
(d) a matter which is or was the subject of a public inquiry;
(e) a matter of such description as may be specified.
(6) Nothing in subsection (5)(a) to (d) prevents the investigation of a general service welfare matter which comes to the attention of the Commissioner in connection with a service complaint, a service inquiry, a criminal investigation or criminal proceedings, or a public inquiry.
(7) A description of a matter may be specified under subsection (5)(e) only if the Secretary of State considers that investigation of a matter of that description by the Commissioner—
(a) would be against the interests of national security, or
(b) might jeopardise the safety of any person.
(8) The Secretary of State must, in connection with an investigation under this section—
(a) co-operate with the Commissioner so far as is reasonable,
(b) give the Commissioner such reasonable assistance as the Commissioner requests, and
(c) consider any findings or recommendations made by the Commissioner (whether or not contained in a report under section 340LA).
(9) In this section—
“public inquiry” means an inquiry under the Inquiries Act 2005;
“specified” means specified in regulations made by the Secretary of State.
(1) The Armed Forces Commissioner may, for the purposes of an investigation under section 340IA, enter service premises and do any of the following—
(a) view the premises;
(b) observe the carrying on of activities on the premises;
(c) inspect and take copies of any document on, or capable of being viewed using equipment on, the premises;
(d) inspect any equipment or other item on the premises;
(e) take measurements and photographs and make recordings;
(f) require any person on the premises to provide an explanation of any document or to state where it can be found;
(g) make such other enquiries as the Commissioner considers appropriate of any person on the premises;
(h) require any person on the premises to give any other assistance that the Commissioner may reasonably require for the purposes of the investigation.
(2) The reference in subsection (1)(c) to inspecting and taking copies of any document includes requiring any document kept in electronic form to be produced in a form in which—
(a) it is legible or from which it can readily be produced in a legible form, and
(b) can be taken away.
(3) If the Commissioner proposes to exercise the power under subsection (1), the Commissioner must give the Secretary of State notice of the proposal within such period before exercising the power as the Commissioner considers appropriate.
(4) Subsection (3) does not apply, so far as relating to service premises in the United Kingdom, if the Commissioner considers that giving notice would defeat the object of exercising the power.
(5) When exercising the power under subsection (1), the Commissioner—
(a) may be accompanied by any person and bring anything required for the purposes of the investigation;
(b) must, if requested to do so by a person on the premises, produce evidence of the Commissioner’s identity.
(6) The Secretary of State may prevent or restrict the Commissioner’s exercise of the power under subsection (1) (generally or in a particular case) so far as the Secretary of State considers it necessary to do so—
(a) in the interests of national security, or
(b) for the safety of any person.
(7) The power under subsection (1) may not be exercised—
(a) in relation to anything that the Commissioner has reasonable grounds for believing to be an item subject to legal privilege;
(b) to require a person to do anything that the person could not be compelled to do in civil proceedings before the High Court (or, in Scotland, the Court of Session).
(8) In this section—
“item subject to legal privilege”—
in England and Wales, has the same meaning as in the Police and Criminal Evidence Act 1984;
in Scotland, has the meaning given by section 412 of the Proceeds of Crime Act 2002;
in Northern Ireland, has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));
“premises” includes any place and, in particular, includes—
any vehicle, ship or aircraft, and
any tent or movable structure;
“service living accommodation” has the meaning given by section 96;
“service premises” means any premises which are permanently or temporarily occupied or controlled for the purposes of a regular or reserve force but are not service living accommodation.
340J Power to require information, documents and evidence
(1) The Armed Forces Commissioner may, for the purposes of an investigation under section 340H or 340IA, require a person to provide—
(a) documents in the person's possession or control, or
(b) other information in the person's possession or control.
(2) The Commissioner has the same powers as the High Court (or, in Scotland, the Court of Session), for the purposes of an investigation, in respect of—
(a) the attendance and examination of witnesses (including the examination of witnesses abroad), and
(b) the production of documents.
(3) A person may not be required under this section to do anything that the person could not be compelled to do in civil proceedings before the High Court (or, in Scotland, the Court of Session).
(1) This section applies if a person—
(a) without lawful excuse, obstructs the discharge of any of the Armed Forces Commissioner’s functions relating to an investigation under section 340H or 340IA, or
(b) does any act in relation to an investigation that would constitute contempt of court if the investigation were proceedings in the High Court (or, in Scotland, the Court of Session).
(2) The Commissioner may certify the obstruction or act to the High Court (or, in Scotland, the Court of Session).
(3) The court may inquire into the certified obstruction or act.
(4) If the court, having heard any witness on behalf of or against the person and any statement in the person's defence, is satisfied that the person—
(a) without lawful excuse, obstructed the discharge of any of the Commissioner’s functions relating to the investigation, or
(b) did the act referred to in subsection (1)(b),
it may deal with the person in any way in which it could deal with the person if he or she had committed contempt in relation to the court.
(5) In this section, “act” includes an omission and references to the doing of an act are to be read accordingly.
340L Report and recommendations : service complaints investigations
(1) The Armed Forces Commissioner must, after carrying out an investigation under section 340H, prepare a report setting out—
(a) the Commissioner’s findings, and
(b) any recommendations referred to in subsection (2).
(2) Those recommendations are—
(a) on an investigation under section 340H(1)(a) where the Commissioner finds that the service complaint to which the investigation relates is well-founded, the Commissioner’s recommendations (if any) on what redress would be appropriate;
(b) on an investigation under section 340H(1)(b), (c) or (d) where the Commissioner finds that the allegation to which the investigation relates is well-founded, the Commissioner’s recommendations (if any) as a result of that finding;
(c) where, by virtue of section 340H(7), the Commissioner finds maladministration in connection with the handling of a service complaint, the Commissioner’s recommendations (if any) as a result of that finding.
(3) The Commissioner may for the purposes of subsection (2)(b) or (c) make any recommendations that the Commissioner considers appropriate, including recommendations for the purpose of remedying—
(a) the maladministration or undue delay to which the finding relates, and
(b) any injustice that the Commissioner considers has or could have been sustained, in consequence of the maladministration or undue delay, by the complainant.
(4) The report must include the Commissioner’s reasons for each of the findings and recommendations.
(5) The Commissioner must send a copy of the report to—
(a) the Defence Council,
(b) the complainant, and
(c) any other persons specified, or of a description specified, in regulations made by the Secretary of State.
(6) The Commissioner may send a copy of the report to any other persons the Commissioner considers appropriate.
(7) The Secretary of State may make regulations with respect to reports under this section; and the regulations may in particular include—
(a) further provision about the preparation of reports;
(b) provision for the correction of accidental errors in reports;
(c) provision about obligations (including obligations of confidentiality) that may be imposed on persons to whom reports are sent.
340LA Report and recommendations: general service welfare investigations
(1) After carrying out an investigation under section 340IA, the Armed Forces Commissioner may prepare one or more reports setting out—
(a) the Commissioner’s findings, and
(b) the Commissioner’s recommendations (if any) as a result of the findings.
(2) Subsection (3) applies if the investigation was carried out wholly or partly in response to a request made by an individual.
(3) A report under subsection (1) must not include information which identifies the individual or enables them to be identified, except with their consent.
(4) If the Commissioner prepares a report under subsection (1)—
(a) the report must include the Commissioner’s reasons for each of the findings and recommendations, and
(b) the Commissioner must give the report to the Secretary of State as soon as practicable after it has been prepared.
(5) On receiving a report under subsection (4)(b), the Secretary of State must lay it before Parliament promptly and, in any event, before the end of 30 sitting days beginning with the day on which the report is received.
“Sitting day” means a day on which both Houses of Parliament sit.
(6) The Secretary of State may exclude from any report laid under subsection (5) any material the publication of which the Secretary of State considers—
(a) would be against the interests of national security, or
(b) might jeopardise the safety of any person.
340M Action following receipt of report under section 340L
(1) The Defence Council must—
(a) consider a report under section 340L,
(b) notify the Armed Forces Commissioner and the complainant, giving reasons in writing, of the action (if any) the Council decide to take in response to the findings and any recommendations contained in the report, and
(c) where the Council decide to reject a recommendation, notify the Commissioner and the complainant, giving reasons in writing for the rejection.
(2) Where the Defence Council decide that a service complaint should be reconsidered to any extent, they must decide whether the reconsideration is to be carried out—
(a) by a person or panel of persons appointed by the Council, or
(b) by the Council themselves;
but this is subject to any provision made by virtue of subsection (6).
(3) The Defence Council must not appoint a person or panel to reconsider a service complaint unless—
(a) the person is, or all the persons on the panel are, authorised by the Council to make the decisions required in connection with the reconsideration and to grant any appropriate redress, or
(b) the Council propose to authorise that person or those persons for those purposes.
(4) The Defence Council may give such directions as they consider appropriate in connection with the reconsideration of a service complaint by a person or panel appointed under subsection (2)(a).
(5) The power of the Defence Council under subsection (4) is subject to any provision made in service complaints regulations about—
(a) the procedure to be followed in connection with the reconsideration of a service complaint;
(b) the persons to be notified of the decision on reconsideration.
(6) The power of the Secretary of State to make regulations under section 340E(1) includes power—
(a) to provide that persons of a specified description may not be appointed under subsection (2)(a) (whether or not as part of a panel);
(b) to require the Defence Council, in relation to any service complaint of a specified description, to act under subsection (2)(a) so as to appoint—
(i) a person who is independent, or of a specified description, or both;
(ii) a panel that satisfies one or more of the requirements listed in subsection (7);
(c) in a case where a requirement within subsection (7)(b) has effect, to require specified functions of a panel to be exercised by the independent members of the panel.
(7) These are the requirements mentioned in subsection (6)(b)(ii)—
(a) all of the members of the panel must be independent;
(b) the panel must include at least a specified number or proportion of independent members;
(c) the panel must include a person of a specified description.
(8) The Defence Council may delegate to any person any of the Council's functions under this section, other than—
(a) the Council's function of reconsidering a service complaint, or
(b) any function of the Council by virtue of subsection (3)(b) in connection with authorising a person to make decisions and to grant redress.
(9) Subsection (8) does not affect the application of section 1(5) or (7) of the Defence (Transfer of Functions) Act 1964 (discharge by Service Boards of Defence Council functions) in relation to the Defence Council's functions under this section.
(10) Section 340E(4) and (5) apply for the purposes of subsections (6) and (7).
(1) Where the Armed Forces Commissioner considers that a communication made to the Commissioner alleges that a person named in the communication—
(a) is subject to service law and has been wronged in any matter relating to his or her service, or
(b) was wronged in any matter relating to his or her service which occurred while the person was subject to service law,
the Commissioner may refer the allegation to the appropriate officer.
(2) “The appropriate officer” is the officer whom the Commissioner considers to be the officer to whom a service complaint made by the person in respect of the alleged wrong is (under service complaints regulations) to be made.
(3) If an allegation is referred under subsection (1), the appropriate officer must as soon as is reasonably practicable—
(a) inform the person that the allegation has been so referred,
(b) ensure that the person is aware of—
(i) the procedure for making a service complaint, and
(ii) the effect on the making of service complaints of provision made by virtue of section 340B(2)(c) (time limit), and
(c) ascertain whether the person wishes to make a service complaint in respect of the alleged wrong.
(4) Regulations made by the Secretary of State must make provision—
(a) about matters that must be notified to the Commissioner where an allegation is referred under subsection (1), and
(b) about the time by which notification must be given.
(1) The Armed Forces Commissioner must, for each calendar year, prepare a report covering the following matters.
(2) Those matters are—
(a) the efficiency, effectiveness and fairness with which the system for dealing with service complaints has operated during that year,
(b) the exercise by the Commissioner during that year of the Commissioner’s functions under this Part, and
(c) such other aspects of the system mentioned in paragraph (a), and such matters relating to the functions mentioned in paragraph (b), as the Commissioner considers appropriate or the Secretary of State may direct.
(2A) A report under subsection (1) must also include a summary of any findings and recommendations made by the Commissioner in connection with an investigation under section 340IA during the year to which the report under subsection (1) relates (whether or not contained in a report under section 340LA).
(3) The Commissioner must give a report under subsection (1) to the Secretary of State as soon as practicable after the end of the calendar year to which the report relates.
(4) The Secretary of State must, on receiving a report under subsection (1), lay it before Parliament.
(5) The Secretary of State may exclude from any report laid under subsection (4) any material whose publication the Secretary of State considers—
(a) would be against the interests of national security, or
(b) might jeopardise the safety of any person.
(6) The Secretary of State may require the Commissioner to prepare and give to the Secretary of State a report on—
(a) any aspect of the system mentioned in subsection (2)(a);
(b) any matter relating to any of the Commissioner’s functions under this Part.
(1) The Secretary of State may by regulations make, in relation to the Service Police Complaints Commissioner (established under section 365BA), service police forces and the tri-service serious crime unit, provision corresponding (with or without modifications) to any provision of or made under Part 2 of the Police Reform Act 2002 (complaints and misconduct) except for section 19 of that Act (but see subsections (4) to (6)).
(2) For the purposes of subsection (1), section 105(5) of the Police Reform Act 2002 (power to provide for matters to be determined by Director General of the Independent Office for Police Conduct) is treated as included in Part 2 of that Act.
(3) If regulations under subsection (1) include provision corresponding (with or without modifications) to section 10(5) of the Police Reform Act 2002 (general functions of Director General), the regulations may also provide for subsection (2D) of section 54 of the Police Act 1996 (functions of inspectors of constabulary) to apply (with or without modifications) in relation to the Service Police Complaints Commissioner as that subsection applies in relation to the Director General of the Independent Office for Police Conduct.
(4) The Secretary of State may by regulations make such provision as the Secretary of State thinks appropriate for the purpose of authorising—
(a) the use of directed and intrusive surveillance, and
(b) the conduct and use of covert human intelligence sources,
for the purposes of, or for purposes connected with, the carrying out of the Service Police Complaints Commissioner’s functions.
(5) Regulations under subsection (4) may, for the purposes of or in connection with any such provision as is mentioned in subsection (4), make amendments that the Secretary of State thinks appropriate to—
(a) Parts 2 and 4 of the Regulation of Investigatory Powers Act 2000 (surveillance and covert human intelligence sources and scrutiny of investigatory powers), and
(b) Part 3 of the Police Act 1997 (authorisations in respect of property).
(6) Expressions used in this section and in Part 2 of the Regulation of Investigatory Powers Act 2000 have the same meanings in this section as in that Part.
340Q Investigation of concerns raised by whistle-blowers
(1) The Secretary of State may by regulations make, in relation to the Service Police Complaints Commissioner, service police forces and the tri-service serious crime unit, provision corresponding (with or without modifications) to any provision of or made under Part 2B of the Police Reform Act 2002 (investigation of concerns raised by whistle-blowers).
(2) For the purposes of this section, section 105(5) of the Police Reform Act 2002 (power to provide for matters to be determined by Director General of the Independent Office for Police Conduct) is treated as included in Part 2B of that Act.
(1) The Secretary of State may by regulations make, in relation to policing by one or more than one relevant body, provision corresponding (with or without modifications) to any provision of or made under Part 2A of the Police Reform Act 2002 (super-complaints).
(2) In subsection (1) “relevant body” means a service police force or the tri-service serious crime unit.
341 Forfeitures and deductions: general provisions
(1) No forfeiture of the pay of a person subject to service law may be imposed unless authorised by or under this Act or any other Act.
(2) No deduction from the pay of a person subject to service law may be made unless authorised by or under this Act or any other Act.
(3) Subsections (1) and (2) do not prevent the making by a Royal Warrant under section 333, or by any regulation, order or instruction of the Defence Council, of provision—
(a) for the imposition of any forfeiture authorised by or under an Act;
(b) for the making of any deduction so authorised;
(c) for the time at which and the way in which amounts may be deducted from pay to give effect to authorised deductions;
(d) as to the appropriation of amounts deducted;
(e) for the determination of questions relating to forfeitures and deductions.
(4) A person subject to service law 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 regulations made by the Defence Council.
(5) Notwithstanding the forfeiture of the pay of a person subject to service law for any period, he may remain in receipt of pay at such minimum rate as may be prescribed by regulations made by the Defence Council; 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 service law may also be deducted from any bounty, allowance or grant which may be due to him; and references in this section and section 342 to the making of deductions from pay are to be read accordingly.
(1) The Secretary of State may by regulations make provision for the purpose of enabling the Defence Council, or officers authorised by them, to make orders—
(a) authorising the pay of a person subject to service law to be forfeited for or in respect of any period of prescribed absence from duty;
(b) authorising deductions to be made from the pay of a relevant person and to be appropriated in or towards satisfaction of any amount paid by or on behalf of a service authority to meet the whole or part of a sum that the person has been ordered to pay by a civilian court (anywhere);
(c) authorising deductions to be made from the pay of a relevant person and to be appropriated as or towards compensation for any loss of, or damage to, public or service property which a prescribed person is satisfied has been caused by the relevant person's wrongful act or negligence;
(d) authorising deductions to be made from the pay of a person subject to service law and to be appropriated in or towards satisfaction of any payment which he is required to make in respect of a financial penalty;
(e) authorising deductions to be made from the pay of a relevant person and to be appropriated in or towards satisfaction of—
(i) any prescribed payment which he is required to make under, or in connection with, a prescribed maintenance order;
(ii) any obligation on his part to make periodical payments in accordance with a prescribed maintenance assessment or maintenance calculation; or
(iii) any amount required to be paid by him by virtue of any judgment or order enforceable by a court in the United Kingdom;
(f) authorising deductions to be made from the pay of a relevant person and to be appropriated towards the maintenance of a spouse, civil partner, former spouse, former civil partner, child or prescribed person.
(2) Regulations under this section may in particular make provision—
(a) with respect to the duration, variation, revocation, continuation or suspension of such orders;
(b) conferring functions in relation to such orders on the Defence Council;
(c) for the delegation by the Defence Council of any of their functions in relation to such orders;
(d) limiting the amount which may be deducted from a person's pay;
(e) requiring prescribed persons to provide prescribed information, or to supply copies of prescribed documents, to the Defence Council or persons authorised by them;
(f) with respect to the computation of time for the purposes of orders made by virtue of subsection (1)(a);
(g) with respect to the carrying out of investigations in connection with orders made by virtue of subsection (1)(c);
(h) with respect to the standard of proof which is to apply in connection with orders made by virtue of subsection (1)(c);
(i) for any prescribed forfeiture of a person's pay to apply only to so much of his pay as remains after any deduction from that pay in accordance with an order made by virtue of subsection (1)(e) or (f);
(j) with respect to the procedure which is to apply in connection with orders made by virtue of subsection (1)(f).
(3) Any forfeiture or deduction imposed by virtue of subsection (1)(a), (b) or (c) may be remitted—
(a) by the Defence Council; or
(b) by an officer authorised by the Defence Council.
(4) In this section—
“financial penalty” means—
a fine or service compensation order imposed by virtue of this Act (including 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); or
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;
“public property” has the meaning given by section 26(2);
“relevant person” means a person subject to service law by reason of section 367(1) or (2)(a), (b), (c) or (e);
“service property” has the meaning given by section 26(3).
(5) The reference in subsection (1)(e)(iii) to a judgment or order enforceable by a court in the United Kingdom includes a judgment enforceable by the Enforcement of Judgments Office.