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Armed Forces Act 2006

Type Public General Act

Publication 2006-11-08

Last updated 2026-04-01

State In force

Department Statute Law Database

Source legislation.gov.uk

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(a) that the person searched might use it to assist him to escape from service custody; or

(b) in the case of an arrest under section 67 or 69, that it is evidence of a service offence or has been obtained in consequence of the commission of a service offence.

(3) In subsection (2) “item subject to legal privilege” has the meaning given by section 10 of PACE.

Power to make provision conferring power to search premises at which person arrested

74

The Secretary of State may by order make provision, in relation to premises in which a person was when or immediately before he was arrested under section 67, which is equivalent to that made by any of the provisions of section 32 of PACE which relate to the power to enter and search premises, subject to such modifications as the Secretary of State considers appropriate.

Chapter 2 — Stop and Search

Power of service policeman to stop and search persons, vehicles etc

75

(1) A service policeman may, in the circumstances mentioned in subsection (2) and in a place permitted by section 78, search any of the following for stolen or prohibited articles, controlled drugs , psychoactive substances or Her Majesty's stores—

(a) any person who is, or whom the service policeman has reasonable grounds for believing to be, a person subject to service law or a civilian subject to service discipline;

(b) a service vehicle which is in the charge of any person;

(c) any vehicle which is, or which the service policeman has reasonable grounds for believing to be, in the charge of a person subject to service law or a civilian subject to service discipline;

(d) anything which is in or on a service vehicle or a vehicle within paragraph (c).

(2) The circumstances are that the service policeman has reasonable grounds for suspecting—

(a) that the search will reveal stolen or prohibited articles;

(b) that the search will reveal Her Majesty's stores that have been unlawfully obtained;

(i) the person is in possession of a controlled drug in circumstances in which he commits an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Misuse of Drugs Act 1971, or

(ii) the person is in possession of a psychoactive substance in circumstances in which he commits an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Psychoactive Substances Act 2016; or

(d) in the case of the search of a vehicle, that—

(i) the search will reveal a controlled drug that is in a person's possession in the circumstances mentioned in paragraph (c)(i), or

(ii) the search will reveal a psychoactive substance that is in a person's possession in the circumstances mentioned in paragraph (c)(ii).

(3) A service policeman may detain for the purposes of a search under subsection (1)—

(a) any person who is, or whom the service policeman has reasonable grounds for believing to be, a person subject to service law or a civilian subject to service discipline;

(b) any person in charge of a service vehicle;

(d) any vehicle within subsection (1)(c).

(4) A service policeman may seize any article that he discovers in the course of a search under subsection (1) and that he has reasonable grounds for suspecting to be—

(a) a stolen or prohibited article;

(b) evidence of an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Misuse of Drugs Act 1971; ...

(ba) evidence of an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Psychoactive Substances Act 2016; or

Stop and search by persons other than service policemen

76

(1) An officer may order or authorise a person subject to service law (other than a service policeman)—

(a) to search, in a place permitted by section 78—

(i) a person within subsection (2),

(ii) a vehicle in the charge of such a person, or

(iii) anything which is in or on such a vehicle,

for stolen or prohibited articles, controlled drugs , psychoactive substances or Her Majesty's stores;

(b) to detain such a person or vehicle for the purposes of such a search; and

(c) to seize any article that he discovers in the course of such a search and that he has reasonable grounds for suspecting to be an article within section 75(4)(a) to (c);

but this is subject to subsections (3) to (7).

(2) A person is within this subsection if he is—

(a) a person subject to service law whose commanding officer is the officer mentioned in subsection (1);

(b) a civilian subject to service discipline whose commanding officer is that officer;

(i) that officer (in the case of an order under subsection (1)), or

(ii) the authorised person (in the case of an authorisation under that subsection),

has reasonable grounds for believing to be a person within paragraph (a) or (b).

(3) An order under subsection (1) may be given only in relation to a particular person or vehicle.

(4) An officer may give an order under subsection (1) only in the circumstances mentioned in section 75(2) (references to the service policeman being read as references to the officer).

(5) A person authorised under subsection (1) may exercise the power of search conferred by virtue of that subsection only in the circumstances mentioned in section 75(2) (references to the service policeman being read as references to the authorised person).

(6) An officer may give an order or authorisation under subsection (1) only if he has reasonable grounds for believing that it is likely that—

(a) an offence under section 42 would be committed, or

(b) a person who has committed such an offence would avoid apprehension,

if the powers conferred by this section could not be exercised before the earliest time by which it would be practicable to obtain the assistance mentioned in subsection (7).

(7) That assistance is—

(a) the assistance of a service policeman; or

(b) in a case where corresponding powers conferred by section 1 of PACE or any other enactment are exercisable by a member of a UK police force, the assistance of a member of such a force who is capable of exercising those corresponding powers.

Sections 75 and 76: definitions

77

(1) Subsections (2) to (6) apply for the purposes of sections 75 and 76.

(2) “Controlled drug” has the meaning given by section 2 of the Misuse of Drugs Act 1971 (c. 38).

(3) “Her Majesty's stores” has the same meaning as in the Public Stores Act 1875 (c. 25).

(4) “Prohibited article” means—

(a) an offensive weapon, other than one in the possession of a person who is permitted to have it in his possession for the purposes of any of Her Majesty's forces;

(b) an article made or adapted for use in the course of or in connection with an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence mentioned in subsection (8); or

(4A) Psychoactive substance” has the meaning given by section 2(1) of the Psychoactive Substances Act 2016.

(5) “Service vehicle” means a vehicle which—

(a) belongs to any of Her Majesty's forces; or

(b) is in use for the purposes of any of those forces.

(6) “Stolen”, in relation to an article, has the same meaning as it has by virtue of section 24 of the Theft Act 1968 (c. 60) in the provisions of that Act relating to goods which have been stolen.

(7) In subsection (4)(a) “offensive weapon” means any article—

(a) made or adapted for use for causing injury to persons; or

(b) intended by the person having it with him for such use by him or by some other person.

(8) The offences referred to in subsection (4)(b) are—

(a) an offence under section 1 of the Theft Act 1968 (theft);

(b) an offence under section 9 of that Act (burglary);

(d) an offence under section 1 of the Criminal Damage Act 1971 (c. 48) (destroying or damaging property);

(e) an offence under section 1 of the Fraud Act 2006 (fraud).

(9) The reference in subsection (4)(b) to an offence under section 42 includes an act or omission which would constitute such an offence if done or made by a person subject to service law.

Places in which powers under sections 75 and 76 may be exercised

78

The powers conferred by sections 75 and 76 may be exercised only in—

(a) any place to which (at the time of exercise of the power) the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission;

(b) any other place to which people have ready access (at the time of exercise of the power) but which is not a dwelling or service living accommodation; and

(c) any premises which (at the time of exercise of the power) are permanently or temporarily occupied or controlled for the purposes of any of Her Majesty's forces but are not service living accommodation.

Sections 75 and 76: limitation on searching persons or vehicles in certain gardens etc

79

(1) Subsection (2) applies if a person (“A”) is in a garden or yard, or on other land, occupied with and used for the purposes of—

(a) a dwelling; or

(b) any service living accommodation within section 96(1)(a).

(2) A person (“B”) may not by virtue of section 78(a) or (b) search A in the exercise of the power conferred by section 75 or 76 unless B has reasonable grounds for believing—

(a) that A does not reside in the dwelling or service living accommodation; and

(b) that A is not in the place in question with the express or implied permission of a person who resides in the dwelling or service living accommodation.

(3) Subsection (4) applies if a vehicle is in a garden or yard, or on other land, occupied with and used for the purposes of—

(a) a dwelling; or

(b) any service living accommodation within section 96(1)(a).

(4) A person may not by virtue of section 78(a) or (b) search the vehicle or anything in or on it in the exercise of the power conferred by section 75 or 76 unless he has reasonable grounds for believing—

(a) that the person in charge of the vehicle does not reside in the dwelling or service living accommodation; and

(b) that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling or service living accommodation.

(5) In this section “dwelling” does not include any dwelling which is permanently or temporarily occupied or controlled for the purposes of any of Her Majesty's forces.

Searches under sections 75 and 76: supplementary

80

(1) The time for which a person or vehicle may be detained for the purposes of a search under section 75 or 76 is such time as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first detained or nearby.

(2) Nothing in section 75 or 76 authorises anyone to require a person to remove any of his clothing in public other than an outer coat, jacket, headgear or gloves.

(3) The reference in subsection (2) to headgear does not include headgear worn for religious purposes.

(4) Nothing in this Chapter limits the powers exercisable on any premises if, or to the extent that, the premises are being used for keeping persons in service custody.

Power to make further provision about searches under sections 75 and 76

81

The Secretary of State may by order make provision, in relation to the search of persons or vehicles under section 75 or 76, which is equivalent to that made by any provision of—

(a) section 2(1) to (7) and (9)(b) of PACE (provisions relating to search under section 1 of that Act and other powers), and

(b) section 3 of PACE (duty to make records concerning searches),

subject to such modifications as the Secretary of State considers appropriate.

Application of Chapter to ships and aircraft

82

This Chapter applies to ships and aircraft as it applies to vehicles.

Chapter 3 — Powers of Entry, Search and Seizure

Entry for purposes of obtaining evidence etc

Power of judge advocate to authorise entry and search

83

(1) On an application made by a service policeman, a judge advocate may, if the relevant requirements are met, issue a warrant authorising a service policeman to enter and search—

(a) one or more sets of premises specified in the application; or

(b) any relevant residential premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified.

(2) The relevant requirements are met (subject to subsection (3)) if the judge advocate is satisfied that each set of premises specified in the application is relevant residential premises and that there are reasonable grounds for believing—

(a) that a relevant offence has been committed;

(b) that material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence is—

(i) in the case of a warrant authorising entry and search of specified premises, on those premises;

(ii) in the case of a warrant authorising entry and search of any relevant residential premises occupied or controlled by a specified person, on one or more sets of such premises occupied or controlled by that person;

(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and

(e) that at least one of the conditions specified in subsection (4) applies in relation to each set of premises specified in the application.

(3) If the application is for a warrant authorising entry and search of any relevant residential premises occupied or controlled by a specified person, the judge advocate must also be satisfied—

(a) that, because of the particulars of the offence mentioned in subsection (2)(a), there are reasonable grounds for believing that in order to find the material mentioned in subsection (2)(b) it is necessary to search relevant residential premises that are occupied or controlled by the person in question and are not specified in the application; and

(b) that it is not reasonably practicable to specify in the application all the relevant residential premises that the person occupies or controls and that might need to be searched.

(4) The conditions mentioned in subsection (2)(e) are—

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b) that it is practicable to communicate with a person entitled to grant entry to the premises, but it is not practicable to communicate with any person entitled to grant access to the evidence;

(d) in the case of service living accommodation within section 96(1)(b) or (c)—

(i) that it is not practicable to communicate with the person or (as the case may be) any of the persons for whom the accommodation is provided; or

(ii) that there is no such person with whom it is practicable to communicate who will agree to grant access to the accommodation without the production of a warrant;

(e) that the purpose of a search may be frustrated or seriously prejudiced unless a service policeman arriving at the premises can secure immediate entry to them.

(5) A warrant under this section may authorise entry to and search of premises on more than one occasion if, on the application for the warrant, the judge advocate is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the warrant is issued.

(6) If the warrant authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.

(7) A service policeman may seize and retain anything for which a search has been authorised under subsection (1).

Section 83: definitions

84

(1) Subsections (2) to (4) apply for the purposes of section 83.

(2) “Relevant offence” means any of the following—

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

(b) a service offence specified for the purposes of this subsection in an order made by the Secretary of State;

(c) a service offence whose commission has led to, or is intended or is likely to lead to, any of the consequences mentioned in subsection (5).

(2A) In subsection (2)(a), the reference to an “indictable offence” has effect as if it included a reference to low-value shoplifting (as defined in section 22A(3) of the Magistrates' Courts Act 1980).

(3) “Relevant residential premises” means—

(a) service living accommodation; or

(b) premises occupied as a residence (alone or with other persons) by—

(i) a person subject to service law;

(ii) a civilian subject to service discipline; or

(iii) a person who is suspected of having committed an offence in relation to which the warrant is sought.

(4) “Items subject to legal privilege”, “excluded material” and “special procedure material” have the meanings given (respectively) by sections 10, 11 and 14 of PACE, but as if in section 11(2)(b) of PACE “enactment” included any provision of—

(a) an Act of the Scottish Parliament or Northern Ireland legislation; or

(b) an instrument made under such an Act or under Northern Ireland legislation.

(5) The consequences referred to in subsection (2)(c) are—

(a) serious harm to the security of the State or to public order;

(b) serious interference with the administration of justice or with the investigation of offences or of a particular offence;

(d) serious injury to any person;

(e) substantial financial gain to any person;

(f) serious financial loss to any person;

(g) the undermining of discipline or morale among members of any of Her Majesty's forces.

(6) In subsection (5)(d) “injury” includes any disease and any impairment of a person's physical or mental condition.

(7) For the purposes of subsection (5)(f), loss is serious if (having regard to all the circumstances) it is serious for the person who suffers it.

Section 83: power to make supplementary provision

85

The Secretary of State may by order—

(a) make provision authorising the use, in connection with applications under section 83 to judge advocates, of live television or telephone links or similar arrangements;

(b) make provision, in relation to warrants issued under that section or entry and search under such a warrant, which is equivalent to that made by any provision of sections 15 and 16 of PACE (which relate to the issue to constables of warrants to enter and search premises), subject to such modifications as the Secretary of State considers appropriate.

Power to make provision as to access to excluded material etc

86

(1) The Secretary of State may by order make provision that enables a service policeman, for the purposes of an investigation of a relevant offence and by making an application to a judge advocate in accordance with the order—

(a) to obtain access to excluded material or special procedure material on relevant residential premises; or

(b) to obtain access to material (other than items subject to legal privilege) on premises other than relevant residential premises.

(2) An order under this section (an “enabling order”) may in particular—

(a) so far as it relates to obtaining access to material on relevant residential premises, make provision equivalent to any provision of Schedule 1 to PACE (special procedure for obtaining production orders and warrants);

(b) so far as it relates to obtaining access to material on premises other than relevant residential premises, make provision equivalent to any provision of paragraphs 1 to 11 of that Schedule (special procedure for obtaining production orders);

(c) make provision equivalent to section 311(2) and (3) of this Act (certification to civil court of offences akin to contempt) in relation to a failure by a person within section 309(6) to comply with an order made by a judge advocate under the enabling order;

(d) authorise the use, in connection with any application made by virtue of the enabling order, of live television or telephone links or similar arrangements.

(2A) Any power under subsection (2) to make provision which is equivalent to another provision includes power to make provision which is equivalent subject to such modifications as the Secretary of State considers appropriate.

(3) In this section “relevant residential premises” means—

(a) service living accommodation; or

(b) premises occupied as a residence (alone or with other persons) by—

(i) a person subject to service law;

(ii) a civilian subject to service discipline; or

(iii) a person who is suspected of having committed the relevant offence concerned.

(4) In this section the following expressions have the meanings given by section 84—

“excluded material”;

“items subject to legal privilege”;

“relevant offence”;

“special procedure material”.

Power of CO to authorise entry and search by service policeman

87

(1) An officer may authorise a service policeman to enter and search premises within subsection (3) if the officer has reasonable grounds for believing—

(a) that a relevant offence within the meaning of section 84 has been committed;

(b) that material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence is on the premises;

(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material (within the meaning given by section 84);

(e) that at least one of the conditions specified in section 83(4) applies; and

(f) that it is likely that the purpose of the search would be frustrated or seriously prejudiced if no search could be carried out before the time mentioned in subsection (2).

(2) That time is the earliest time by which it would be practicable—

(a) for a service policeman to obtain and execute a warrant under section 83 authorising the entry and search of the premises; or

(b) in a case where a member of a UK police force could obtain a warrant under section 8 of PACE or any other enactment authorising the entry and search of the premises, for a member of such a force to obtain and execute such a warrant.

(3) The premises referred to in subsection (1) are—

(a) service living accommodation of a person whose commanding officer is the officer mentioned in that subsection;

(b) premises occupied as a residence (alone or with other persons) by—

(i) a person subject to service law whose commanding officer is that officer; or

(ii) a civilian subject to service discipline whose commanding officer is that officer;

(4) A person authorised under subsection (1) may seize and retain anything for which the search under that subsection was authorised; but this is subject to section 89.

Power of CO to authorise entry and search by other persons

88

(1) An officer may authorise a person subject to service law (other than a service policeman) to enter and search service living accommodation within subsection (3) if the officer has reasonable grounds for believing—

(a) that a relevant offence within the meaning of section 84 has been committed;

(b) that material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence is on the premises;

(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material (within the meaning given by section 84);

(e) that at least one of the conditions specified in section 83(4) applies (the reference in section 83(4)(e) to a service policeman being read as a reference to a person authorised under this subsection); and

(f) that it is likely that the purpose of the search would be frustrated or seriously prejudiced if no search could be carried out before the time mentioned in subsection (2).

(2) That time is the earliest time by which it would be practicable—

(a) to obtain the assistance of a service policeman; or

(b) in a case where a member of a UK police force could obtain a warrant under section 8 of PACE or any other enactment authorising the entry and search of the premises, for a member of such a force to obtain and execute such a warrant.

(3) Service living accommodation is within this subsection if it is—

(a) service living accommodation of a person whose commanding officer is the officer mentioned in subsection (1); and

(b) within section 96(1)(b) or (c).

(4) A person authorised under subsection (1) may seize and retain anything for which the search under that subsection was authorised; but this is subject to section 89.

Review by judge advocate of certain searches under section 87 or 88

89

(1) Where any property has been seized and retained during a search under section 87 or 88, the officer who authorised the search must as soon as practicable request a judge advocate to undertake a review of the search and of the seizure and retention of anything seized and retained during it.

(2) The Secretary of State may by order make provision—

(a) with respect to the practice and procedure which is to apply in connection with reviews under this section;

(b) conferring functions on judge advocates in relation to such reviews.

Entry for purposes of arrest etc

Entry for purpose of arrest etc by a service policeman

90

(1) A service policeman may for the purpose of arresting a person enter and search premises within subsection (2), but only if he has reasonable grounds for believing that the person is on the premises.

(2) The premises referred to in subsection (1) are—

(a) service living accommodation;

(b) premises occupied as a residence (alone or with other persons) by—

(i) a person subject to service law;

(ii) a civilian subject to service discipline; or

(iii) the person to be arrested;

(3) In relation to premises containing two or more separate dwellings, the powers conferred by subsection (1) are powers to enter and search—

(a) any parts of the premises which the occupiers of any dwelling contained in the premises use in common with the occupiers of any other such dwelling; and

(b) any such dwelling that the service policeman has reasonable grounds for believing the person to be arrested to be in.

(4) A service policeman may, for the purpose of saving life or limb or preventing serious damage to property, enter and search any—

(a) service living accommodation;

(b) premises occupied as a residence (alone or with other persons) by—

(i) a person subject to service law; or

(ii) a civilian subject to service discipline; or

(5) Any power of search conferred by this section is a power to search only to the extent that is reasonably required for the purpose for which the power of entry is exercised.

(6) References in this section to arrest are to arrest under section 67, 69, 110, 111 or 303, and related expressions in this section are to be read accordingly.

Entry for purpose of arrest etc by other persons

91

(1) An officer may authorise a person subject to service law (other than a service policeman) to exercise, in relation to premises within subsection (2), the powers conferred by section 90(1) on a service policeman; but this is subject to subsection (3).

(2) The premises are—

(a) service living accommodation of a person whose commanding officer is the officer mentioned in subsection (1);

(b) premises occupied as a residence (alone or with other persons) by—

(i) a person subject to service law whose commanding officer is that officer; or

(ii) a civilian subject to service discipline whose commanding officer is that officer;

(3) An officer may give an authorisation under subsection (1) only if—

(a) the arrest is to be made under section 67;

(b) the offence in respect of which the arrest is to be made is a relevant offence (as defined by section 84); and

(c) the officer has reasonable grounds for believing that, if the arrest could not be made before the earliest time by which it would be practicable to obtain the assistance mentioned in subsection (4)—

(i) the person to be arrested might evade arrest, conceal, damage, alter or destroy evidence, or present a danger to himself or others; or

(ii) discipline or morale among members of any of Her Majesty's forces might be undermined.

(4) That assistance is—

(a) the assistance of a service policeman, or

(b) in a case where corresponding powers conferred by section 17(1)(b) or (c) of PACE or any other enactment are exercisable by a member of a UK police force, the assistance of a member of such a force capable of exercising those corresponding powers.

(5) An officer may authorise a person subject to service law (other than a service policeman) to exercise, in relation to premises within subsection (2), the powers conferred by section 90(4) on a service policeman; but this is subject to subsection (6).

(6) An officer may give an authorisation under subsection (5) in relation to premises within section 90(4)(b) or (c) only if it is not practicable to obtain the assistance of a service policeman in time to take the necessary action to save life or limb or prevent serious damage to property.

(7) The Defence Council may by regulations provide for the delegation by a commanding officer of his functions under this section.

Additional powers of entry, search and seizure

Power to make provision conferring powers of entry and search after arrest

92

The Secretary of State may by order make provision, in relation to premises occupied or controlled by a person who—

(a) has been arrested under section 67, and

(b) is being held in service custody without being charged with a service offence,

which is equivalent to that made by any provision of section 18 of PACE (entry and search after arrest), subject to such modifications as the Secretary of State considers appropriate.

Power to make provision conferring power of seizure etc

93

The Secretary of State may by order make provision, in relation to—

(a) a service policeman who, in connection with the investigation of a service offence, is lawfully on premises which are searchable by virtue of this Part, or

(b) any power of seizure or retention conferred by or under this Part,

which is equivalent to that made by any provision of sections 19 to 21 of PACE (which relate to seizure) or section 22(1) to (4) of that Act (power to retain property seized), subject to such modifications as the Secretary of State considers appropriate.

Chapter 4 — Supplementary

Property in possession of service police or CO

94

(1) The Secretary of State may by regulations make provision with respect to the disposal of property which has come into the possession of a service policeman or a person's commanding officer in connection with the investigation of a service offence.

(2) The regulations may in particular—

(a) enable the Court Martial, the Service Civilian Court or a judge advocate to make an order for the delivery of the property to the person appearing to the court or judge advocate to be the owner of the property or, if the owner cannot be ascertained, to make such order with respect to the property as the court or judge advocate considers appropriate;

(b) enable the commanding officer of a person charged with a service offence—

(i) to determine that any property seized under this Part in connection with the investigation of a service offence should be delivered to the person appearing to the commanding officer to be the owner of the property; or

(ii) if the owner cannot be ascertained, to make such other determination with respect to the delivery of the property as the commanding officer considers appropriate;

(i) in whose possession the property was before it was seized under this Part, or

(ii) who claims to be the owner of the property,

to determine that it should be delivered to that person;

(d) make provision as to appeals against orders made by virtue of paragraph (a) and determinations made by virtue of paragraph (b) or (c); and

(e) provide that, at the end of a specified period from the making of an order by virtue of paragraph (a), the right of any person to take proceedings for the recovery of the property is to cease.

(3) A determination made by virtue of subsection (2)(b) or (c) does not affect the right of any person to recover any property delivered in pursuance of the determination from the person to whom it is delivered.

Saving provision

95

(1) Nothing in this Part affects—

(a) any power of a service policeman or commanding officer to enter and search, or order the entry and search of, premises which are occupied for the purposes of any of Her Majesty's forces, to the extent that the premises do not constitute service living accommodation;

(b) any power of a commanding officer, otherwise than in connection with the investigation of a service offence or the exercise of any power of arrest, to enter and search, or order the entry and search of, service living accommodation;

(c) any power of a commanding officer, otherwise than in connection with the investigation of a service offence or the exercise of any power of arrest, to search, or order the search of, a person or to stop and search, or order the stop and search of, a service vehicle; or

(d) any power of a service policeman or commanding officer to search, or order the search of, a service vehicle which is not in the charge of any person.

(2) In subsection (1) “service vehicle” means a vehicle, ship or aircraft which—

(a) belongs to any of Her Majesty's forces; or

(b) is in use for the purposes of any of those forces.

“Service living accommodation”, “premises” and other definitions

96

(1) In this Part “service living accommodation” means (subject to subsection (2))—

(a) any building or part of a building which is occupied for the purposes of any of Her Majesty's forces but is provided for the exclusive use of a person within subsection (1A), or of such a person and members of his family, as living accommodation or as a garage;

(b) any other room, structure or area (whether on land or on a ship) which is occupied for the purposes of any of Her Majesty's forces and is used for the provision of sleeping accommodation for one or more persons within subsection (1A); or

(i) is provided by any of Her Majesty's forces for personal use by a person within subsection (1A) in connection with his sleeping accommodation, but

(ii) is not in a room, structure or area falling within paragraph (b).

(1A) The following are persons within this subsection—

(a) a person subject to service law;

(b) a civilian subject to service discipline.

(2) Premises are not service living accommodation for the purposes of this Part if, or to the extent that, they are being used for keeping persons in service custody.

(3) In this Part “premises” includes any place and, in particular, includes—

(a) any vehicle, ship or aircraft; and

(b) any tent or movable structure.

(4) In this Part “enactment” includes any provision of—

(a) an Act of the Scottish Parliament or Northern Ireland legislation, or

(b) an instrument made under such an Act or under Northern Ireland legislation,

and also includes any rule of law in Scotland.

Power to use reasonable force

97

(1) Where a power is conferred on any person by or under this Part, he may use reasonable force, if necessary, in the exercise of the power.

(2) Subsection (1) does not apply in relation to powers conferred by Chapter 3A of this Part.

Part 4 — Custody

Chapter 1 — Custody without Charge

Limitations on custody without charge

98

(1) Except in accordance with sections 99 to 102, a person arrested under section 67 may not be kept in service custody without being charged with a service offence.

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

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

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

the commanding officer must, subject to subsection (3), order his immediate release from service custody.

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

(4) Section 301(4) (cases where persons temporarily released from service detention are unlawfully at large) applies for the purposes of this section.

Authorisation by commanding officer of custody without charge

99

(1) Where a person is arrested under section 67—

(a) the arrest, and

(b) any grounds on which he is being kept in service custody without being charged with a service offence,

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

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

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

(b) to obtain such evidence by questioning him.

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

(a) whether the requirements of subsection (4) are satisfied; and

(b) if so, whether to exercise his powers under that subsection;

and the person to whom the report relates may be kept in service custody for such period as is necessary to enable the commanding officer to make that determination.

(4) If, in relation to the person to whom the report relates, the commanding officer has reasonable grounds for believing—

(a) that keeping him in service custody without being charged with a service offence is necessary to secure or preserve evidence relating to a service offence for which he is under arrest or to obtain such evidence by questioning him, and

(b) that the investigation is being conducted diligently and expeditiously,

he may authorise the keeping of that person in service custody.

(5) Subject to subsection (6), an authorisation under subsection (4) ends not more than 12 hours after it is given.

(6) Except in accordance with section 101 or 102, a person may not be kept in service custody later than 48 hours after the arrest without being charged with a service offence.

(7) Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence—

(a) subsections (1) to (5) apply in relation to the arrest for that other offence;

(b) the reference in subsections (2)(a) and (4)(a) to a service offence for which he is under arrest includes the service offence for which he was originally arrested;

(c) the reference in subsection (6) to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested; and

(d) the last authorisation under subsection (4) (if any) given in relation to him ceases to have effect (and accordingly section 100 ceases to apply in relation to that authorisation).

Review of custody by commanding officer

100

(1) The commanding officer of a person kept in service custody in accordance with section 99 must, subject to subsections (3) and (4), review the keeping of that person in service custody not later than the end of the period for which it is authorised.

(2) Subsections (4) and (5) of section 99 apply on each review under this section as they apply where a report is received under section 99(1).

(3) A review may be postponed if, having regard to all the circumstances prevailing at the expiry of the last authorisation under section 99(4), it is not practicable to carry out the review at that time.

(4) A review may also be postponed if at the expiry of the last authorisation under section 99(4)—

(a) the person in service custody is being questioned and the commanding officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which the person is being questioned; or

(b) the commanding officer is not readily available.

(5) Subsection (4) does not limit the power to postpone under subsection (3).

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

(a) it must be carried out as soon as practicable after the expiry of the last authorisation under section 99(4); and

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

Extension by judge advocate of custody without charge

101

(1) If, on an application by the commanding officer of a person arrested under section 67, a judge advocate is satisfied that there are reasonable grounds for believing that the continued keeping of that person in service custody is justified, the judge advocate may by order authorise the keeping of that person in service custody.

(2) A judge advocate may not hear an application under this section unless the person to whom it relates—

(a) has been informed in writing of the grounds for the application; and

(b) has been brought before him for the hearing.

(3) The person to whom the application relates is entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented—

(a) the judge advocate must adjourn the hearing to enable him to obtain representation; and

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

(4) The period for which a judge advocate, on an application under this section, may authorise the keeping of a person in service custody is such period, ending not more than 96 hours after the arrest, as he considers appropriate having regard to the evidence before him.

(5) Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence, the reference in subsection (4) to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested.

(6) For the purposes of this section and section 102, the continued keeping of a person in service custody is justified only if—

(a) keeping him in custody without being charged with a service offence is necessary to secure or preserve evidence relating to a service offence for which he is under arrest or to obtain such evidence by questioning him; and

(b) the investigation is being conducted diligently and expeditiously.

Further provision about applications under section 101

102

(1) Subject to subsection (2), an application under section 101 may be made—

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

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

(2) Where subsection (1)(b) applies, an authorisation on a review under section 100 may be for a period ending more than 48 hours after the arrest, but may not be—

(a) for a period of more than six hours; or

(b) for a period ending more than 96 hours after the arrest.

(3) If—

(a) an application under section 101 is made more than 48 hours after the arrest, and

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

the judge advocate must refuse the application.

(4) Where on an application under section 101 relating to any person the judge advocate is not satisfied that there are reasonable grounds for believing that the continued keeping of that person in service custody is justified, he must—

(a) refuse the application; or

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

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

(6) Where a judge advocate refuses an application under section 101 at any time less than 48 hours after the arrest, he may direct that the person to whom it relates must, without delay, be charged with a service offence or released from service custody.

(7) Where a judge advocate refuses an application under section 101 at any later time, he must direct that the person to whom it relates must, without delay, be charged with a service offence or released from service custody.

(8) Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence, any reference in this section to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested.

Custody without charge: other cases

103

Sections 98 to 102 apply—

(a) where a person is transferred to or taken into service custody under section 313(4), 315(4), 316(3) or 317(4), and

(b) in any other case where a person arrested by a member of a UK police force or overseas police force is transferred to service custody,

as they apply where a person is arrested under section 67, subject to such modifications as the Secretary of State may by order prescribe.

Custody without charge: supplementary

104

(1) The Secretary of State may by regulations make provision—

(a) for the delegation by the commanding officer of a person in service custody of any of the commanding officer's functions under sections 98 to 102;

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

(c) for the keeping of written records relating to compliance with any requirement of sections 69(3)(a) and 98 to 102 or of regulations under paragraph (b).

(2) Any reference in sections 99 to 102 to a period of time is to be treated as approximate only.

Chapter 2 — Custody etc after Charge

Custody after charge

105

(1) Where a person (referred to in this section and sections 106 to 109 as “the accused”) is kept in service custody after being charged with a service offence, he must be brought before a judge advocate as soon as practicable.

(2) At a hearing under subsection (1), the judge advocate may by order authorise the keeping of the accused in service custody, but only if one or more of conditions A to C in section 106 are met.

(3) The period for which a judge advocate may, by an order under subsection (2), authorise the keeping of the accused in service custody is such period, ending not later than eight days after the day on which the order is made, as he considers appropriate having regard to the evidence before him.

(4) For the purpose of deciding whether condition A in section 106 is met, the judge advocate must have regard to such of the following considerations as appear to him to be relevant—

(a) the nature and seriousness of the offence with which the accused is charged (and the probable method of dealing with him for it),

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

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

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

as well as to any other considerations which appear to be relevant.

(5) If—

(a) the accused is charged with an offence under section 42 as respects which the corresponding offence under the law of England and Wales is—

(i) murder,

(ii) manslaughter,

(iii) an offence under section 1 of the Sexual Offences Act 2003 (c. 42) (rape), or

(iv) an attempt to commit an offence within sub-paragraph (i) or (iii),

(b) representations are made as to any of the matters mentioned in condition A in section 106, and

the judge advocate must state the reasons for his decision and must cause those reasons to be included in the record of the proceedings.

(6) An order under subsection (2) does not authorise the keeping of the accused in service custody—

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

(b) at any time after he is sentenced in respect of the offence with which he is charged.

(7) Subsection (1) does not apply where the accused is charged with a service offence at a time when he is kept in service custody by reason of a sentence passed in respect of a service offence or of an order under subsection (2), unless that reason ceases to apply.

Conditions A to D

106

(1) Condition A is that the judge advocate is satisfied that there are substantial grounds for believing that the accused, if released from service custody, would—

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

(b) commit an offence while released; or

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

(2) Condition B is that the judge advocate is satisfied that the accused 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.

(3) Condition C is that the judge advocate is satisfied that, because of lack of time since the accused was charged, it has not been practicable to obtain sufficient information for the purpose of deciding whether condition A or B is met.

(4) Condition D is that the accused's case has been adjourned for inquiries or a report and it appears to the judge advocate that it would be impracticable to complete the inquiries or make the report without keeping the accused in service custody.

Release from custody after charge

107

(1) Subsections (2) and (3) apply where, at a hearing under section 105(1), the judge advocate does not authorise keeping the accused in service custody.

(2) Subject to subsection (3), the accused must be released from service custody without delay.

(3) The accused may be required to comply, before release or later, with such requirements as appear to the judge advocate to be necessary—

(a) to secure his attendance at any hearing in the proceedings against him;

(b) to secure that he does not commit an offence while released from custody;

(c) to secure that he does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person; or

(d) for his own protection or, if he is aged under 17, for his own welfare or in his own interests.

(4) On an application made—

(a) by or on behalf of the accused, or

(b) by the commanding officer of the accused,

any requirement imposed under subsection (3) (including such a requirement as previously varied under this subsection) may be varied or discharged by a judge advocate.

(5) A person on whom a requirement has been imposed by virtue of subsection (3)(a) commits an offence if, without reasonable excuse, he fails to attend any hearing to which the requirement relates.

(6) 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 two years.

Review of custody after charge

108

(1) Where the keeping of the accused in service custody is authorised by an order under section 105(2), it must be reviewed by a judge advocate not later than the end of the period for which it is authorised.

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

(a) release the accused from service custody; or

(b) request a review.

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

(4) Sections 105(2) to (6), 106 and 107 apply in relation to a review as they apply in relation to a hearing under section 105(1); but the application of section 105(3) is subject to subsection (7).

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

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

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

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

Custody during proceedings of Court Martial or Service Civilian Court

109

(1) In relation to a review under section 108(1) which takes place between—

(a) the arraignment of the accused before the Court Martial or the Service Civilian Court, and

(b) the conclusion of proceedings before the court,

section 105(2) to (6) (as applied by section 108(4)) apply with the following modifications.

(2) The reference in section 105(2) to conditions A to C is to be read as a reference to conditions A to D.

(3) Where the accused is awaiting sentence—

(a) references in section 105(4)(a) and (5) to an offence with which the accused is charged are to be read as references to the offence for which he is awaiting sentence; and

(b) section 105(4)(d) does not apply.

Arrest after charge

Arrest after charge or during proceedings by order of commanding officer

110

(1) The commanding officer of a person who—

(a) has been charged with, or is awaiting sentence for, a service offence, and

(b) is not in service custody,

may, if satisfied that taking that person into service custody is justified, give orders for his arrest.

(2) For the purposes of this section, taking a person into service custody is justified if there are reasonable grounds for suspecting that, if not taken into service custody, he would—

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

(b) commit an offence; or

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

(3) Taking a person into service custody is also justified for the purposes of this section if—

(a) he has failed to attend any hearing in the proceedings against him;

(b) there are reasonable grounds for suspecting that he should be taken into service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests; or

(i) if not taken into service custody, he would fail to comply with a requirement imposed under section 107(3); or

(ii) he has failed to comply with such a requirement.

(4) A person arrested under subsection (1) who is kept in service custody—

(a) must as soon as is practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and

(b) on that review is to be dealt with as on a review under section 108(1) (see sections 108(4) to (8) and 109).

(5) Where a power of arrest is conferred on any person by virtue of this section, he may use reasonable force, if necessary, in the exercise of the power.

Arrest during proceedings at direction of court

111

(1) Where—

(a) a person has been arraigned before the Court Martial or the Service Civilian Court, and

(b) proceedings before the court have not concluded,

a judge advocate, if satisfied that taking him into service custody is justified, may direct the arrest of that person.

(2) Any person with power to arrest that person for a service offence has the same power, exercisable in the same way, to arrest him pursuant to a direction under subsection (1).

(3) Subsections (2) and (3) of section 110 apply for the purposes of this section.

(4) A person arrested under this section who is kept in service custody—

(a) must as soon as is practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and

(b) on that review is to be dealt with as on a review under section 108(1) (see sections 108(4) to (8) and 109).

Chapter 3 — Custody Proceedings Rules

Custody proceedings rules

112

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

(a) on an application under section 101;

(b) under section 105(1);

(d) on a review under section 108(1), 110(4), 111(4) or 171(2).

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

(a) with respect to arrangements preliminary to the proceedings;

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

(d) for procuring the attendance of witnesses;

(e) with respect to the immunities and privileges of witnesses;

(f) with respect to oaths and affirmations;

(g) with respect to circumstances in which a review under section 108(1), 110(4), 111(4) or 171(2) may be carried out without a hearing;

(h) with respect to the use for the purposes of the proceedings of live television or telephone links or similar arrangements, including the use of such links or other arrangements as a means of satisfying any requirement imposed by this Act for a person to be brought before a judge advocate;

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

Part 5 — Investigation, Charging and Mode of Trial

Chapter 1 — Investigation

Duties of commanding officers

CO to ensure service police aware of possibility serious offence committed

113

(1) If an officer becomes aware of an allegation or circumstances within subsection (2), he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a Schedule 2 offence has or may have been committed by a relevant person.

(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

(4) In this Chapter “Schedule 2 offence” means a service offence listed in Schedule 2.

(5) The Secretary of State may by order amend Schedule 2.

CO to ensure service police aware of certain circumstances

114

(1) If an officer of a prescribed description becomes aware of circumstances of a prescribed description, he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) In this section “prescribed” means prescribed by regulations under section 128.

Duty of CO with respect to investigation of service offences

115

(1) This section applies where—

(a) an officer becomes aware of an allegation or circumstances within subsection (2); and

(b) the officer is not required by section 113(1) or 114(1) to ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a service offence has or may have been committed by a relevant person.

(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

(4) The officer must either—

(a) ensure that the matter is investigated in such way and to such extent as is appropriate; or

(b) ensure, as soon as is reasonably practicable, that a service police force or the tri-service serious crime unit is aware of the matter.

(5) Subsection (4) does not apply if the matter has already been investigated in such way and to such extent as is appropriate.

Duty of service policeman following investigation

Referral of case following investigation by service or civilian police

116

(1) This section applies where—

(a) a service police force or the tri-service serious crime unit has investigated an allegation which indicates, or circumstances which indicate, that a service offence has or may have been committed; or

(b) a UK police force or overseas police force has investigated such an allegation or such circumstances and has referred the matter to a service police force or the tri-service serious crime unit.

(2) If—

(a) a service policeman considers that there is sufficient evidence to charge a person with a service offence that is not a CO offence, or

(b) a service policeman considers that there is sufficient evidence to charge a person with a service offence that is a CO offence, and is aware of circumstances of a description prescribed by regulations under section 128 for the purposes of this paragraph,

he must refer the case to the Director of Service Prosecutions (“the Director”).

(3) If—

(a) a service policeman considers that there is sufficient evidence to charge a person with a service offence, ...

(b) subsection (2) does not apply , and

he must refer the case to the person's commanding officer.

(4) Subsection (4A) applies if—

(a) the allegation or circumstances would indicate to a reasonable person that a person has committed, or might have committed, a service offence which is not one that may be dealt with at a summary hearing (see section 53), or

(b) any circumstances investigated are circumstances of a description prescribed by regulations under section 128 for the purposes of section 114,

and a service policeman proposes not to refer the case to the Director under subsection (2) or section 117(5).

(4A) If this subsection applies, the service policeman must consult the Director as soon as is reasonably practicable (and before any referral of the case under subsection (3)).

(5) For the purposes of this section—

(a) there is sufficient evidence to charge a person with an offence if, were the evidence suggesting that the person committed the offence to be adduced in proceedings for the offence, the person could properly be convicted , and

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

Section 116: position where investigation is of multiple offences or offenders

117

(1) This section applies where the investigation mentioned in section 116(1) relates to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons.

(2) Each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

(3) Subsections (4) and (5) apply if—

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

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

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

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

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

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

Duty of service policeman to notify CO of referral to DSP

118

(1) This section applies where a service policeman considers that there is sufficient evidence to charge a person (“A”) with a service offence and refers the case under section 116(2) or 117(5) to the Director of Service Prosecutions.

(2) The service policeman must as soon as reasonably practicable after referring the case—

(a) notify A's commanding officer of the referral; and

(b) provide prescribed documents to A's commanding officer.

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

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

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

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

(4) In this section—

(a) any reference to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5)(a);

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

(b) “prescribed documents” means documents prescribed for the purposes of subsection (2)(b) by regulations under section 128.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 2 — Charging and Mode of Trial

Powers of charging etc

Circumstances in which CO has power to charge etc

119

(1) This section sets out the circumstances in which a commanding officer has initial powers (defined by section 120) in respect of a case.

(2) If a commanding officer of a person becomes aware of an allegation which indicates, or circumstances which indicate, that the person has or may have committed a service offence, he has initial powers in respect of the case.

(3) Subsection (2) does not apply if the allegation or circumstances—

(a) give or have given rise to the duty under section 113(1) or 114(1);

(b) are being or have been investigated by a service police force or the tri-service serious crime unit; or

(c) are being or have been investigated by a UK police force or overseas police force, and it appears to the commanding officer that that force may refer the matter to the service police.

(4) A commanding officer has initial powers in respect of a case which a service policeman has referred to him under section 116(3) (referral of case following investigation by service or civilian police).

(5) A commanding officer has initial powers in respect of a case which the Director of Service Prosecutions has referred to him under section 121(4) (referral of case by DSP).

(6) If an allegation or circumstances mentioned in subsection (2) relate to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons, each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

Power of CO to charge etc

120

(1) Subsections (2) and (3) apply where under section 119 a commanding officer has initial powers in respect of a case.

(2) The officer may bring, in respect of the case, one or more charges that are capable of being heard summarily (see section 52).

(3) The officer may refer the case to the Director of Service Prosecutions.

(4) A charge brought under subsection (2) is to be regarded for the purposes of this Part as allocated for summary hearing.

(5) Where an officer has referred a case under subsection (3), the officer must also refer to the Director of Service Prosecutions any other case—

(a) which is of a description prescribed by regulations under section 128 for the purposes of this subsection, and

(b) as respects which the officer has initial powers,

....

Power of DSP to direct bringing of charge etc

121

(1) The powers in subsections (1A) to (5) are exercisable by the Director of Service Prosecutions (“the Director”) in respect of a case which has been referred to him under—

(a) section 116(2) (referral of case following investigation by service or civilian police);

(aa) section 117(5) (referral of connected cases); or

(b) section 120(3) or (5) (referral of case by CO).

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

(1B) If—

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

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

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

(2) The Director may direct the commanding officer of the person concerned to bring, in respect of the case, such charge or charges against him as may be specified in the direction.

(3) If—

(a) the Director makes a direction under subsection (2), and

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

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

(4) The Director may refer the case to the commanding officer of the person concerned, but only if he has decided that it would not be appropriate to bring a charge under subsection (1A) or to make a direction under subsection (2) in respect of it.

(5) The Director may make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of any offence as regards which he could bring a charge under subsection (1A) or make a direction under subsection (2).

Charges brought at direction of DSP

122

(1) Where a direction under section 121(2) is given to an officer, he must bring the charge or charges specified in the direction.

(2) A charge brought by the Director of Service Prosecutions (“the Director”) under section 121(1A) or by an officer as a result of a direction under section 121(2)—

(a) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial if the Director allocated it (under section 121(1B) or (3)) for trial by that court;

(b) otherwise, is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Powers of commanding officer or DSP after charge etc

Powers of CO after charge

123

(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for summary hearing.

(2) The accused's commanding officer may—

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) refer the charge to the Director of Service Prosecutions.

(3) The powers under subsection (2) may be exercised before or after the start of any summary hearing of the charge.

(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be capable of being heard summarily (see section 52).

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for summary hearing.

(7) Where a charge is referred under subsection (2)(e) to the Director of Service Prosecutions, the charge and any other charge brought in respect of the same case are to be regarded for the purposes of this Part as allocated for Court Martial trial.

CO to hear charge allocated for summary hearing

124

(1) This section applies in respect of a charge which is regarded for the purposes of this Part as allocated for summary hearing.

(2) The accused's commanding officer must hear the charge summarily unless—

(a) he exercises his powers under section 123(2)(b), (d) or (e) in respect of the charge (substitution of charge, discontinuance of proceedings, or referral to DSP); or

(b) the accused elects Court Martial trial of the charge (see section 129).

(3) Subsection (2) is subject to sections 52 (charges capable of being heard summarily) and 54 (charges which may be heard summarily only with permission or by senior officer).

Powers of DSP in respect of charge allocated for Court Martial trial

125

(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Court Martial trial.

(2) The Director of Service Prosecutions may—

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) refer the charge to the accused's commanding officer, but only if the charge is capable of being heard summarily (see section 52);

(f) allocate the charge for trial by the Service Civilian Court, but only if the charge is one that that court has jurisdiction to try;

(g) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3) Court Martial rules may restrict the exercise of powers under subsection (2)—

(a) after arraignment by the Court Martial; or

(b) after referral of the charge to the Court Martial under section 279(4) or 280(3) (referral by SCC); ...

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

(7) Any charge referred under subsection (2)(e) to a commanding officer is to be regarded for the purposes of this Part as allocated for summary hearing.

(8) Any charge allocated under subsection (2)(f) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

Powers of DSP in respect of charge allocated for SCC trial

126

(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(2) The Director of Service Prosecutions may—

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) allocate the charge for trial by the Court Martial;

(f) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3) SCC rules may restrict the exercise, after a decision by the Service Civilian Court under section 279 as to whether it should try the charge, of powers under subsection (2).

(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be one that the Service Civilian Court has jurisdiction to try.

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(7) Any charge allocated under subsection (2)(e) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Chapter 3 — Supplementary

Directions by DSP barring further proceedings

127

(1) A direction under this subsection is a direction that for the purposes of section 63 the person specified in the direction is to be treated as acquitted of the service offence so specified.

(2) A direction under this subsection is a direction that for the purposes of sections 63 and 64 the person specified in the direction is to be treated as acquitted of the service offence so specified.

Regulations for purposes of Part 5

128

(1) The Secretary of State may by regulations make such provision as he considers necessary or expedient for the purposes of any provision of this Part.

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

(a) for the delegation by a commanding officer of any of his functions;

(b) as to the bringing, amendment and substitution of charges;

(c) as to the referral of cases and charges, including provision requiring a commanding officer in prescribed circumstances to refer a case or charge to the Director of Service Prosecutions;

(d) as to the examination of witnesses for the purpose of obtaining information of assistance to the Director of Service Prosecutions in connection with his functions under Chapter 2;

(e) requiring prescribed persons to be notified of prescribed matters.

(3) In subsection (2) “prescribed” means prescribed by regulations under this section.

Part 6 — Summary Hearing and Appeals and Review

Chapter 1 — Summary Hearing

Right to elect Court Martial trial

129

(1) Before hearing a charge summarily the commanding officer must, in the way specified by rules under section 153, give the accused the opportunity of electing Court Martial trial of the charge.

(2) If the accused elects Court Martial trial of the charge—

(a) the commanding officer must refer the charge to the Director of Service Prosecutions; and

(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.

(3) Where two or more charges against the accused are to be heard summarily together, an election for Court Martial trial in respect of any of the charges takes effect as an election in respect of all of them.

(4) Subsection (5) applies if an opportunity to elect Court Martial trial of a charge (“the original charge”) has been given under subsection (1) and subsequently—

(a) the charge is amended;

(b) another charge is substituted for it; or

(5) Subsection (1) applies in relation to the amended, substituted or additional charge; and if the amendment, substitution or addition takes place after the start of the summary hearing, that subsection has effect in relation to the charge as if the reference to hearing a charge summarily were to proceeding with the hearing.

(6) In subsection (4)—

(a) “amended” means amended under section 123(2)(a) or, in the case of a charge referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, amended under section 125(2)(a) and referred to the commanding officer under section 125(2)(e);

(b) “substituted” means substituted under section 123(2)(b) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, substituted under section 125(2)(b) and referred to the commanding officer under section 125(2)(e);

(c) “brought”, in relation to an additional charge, means brought under section 123(2)(c) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, brought under section 125(2)(c) and referred to the commanding officer under section 125(2)(e).

(7) Subsection (8) applies where—

(a) an opportunity to elect Court Martial trial of a charge has been given under this section;

(b) the accused has not elected Court Martial trial; and

(c) at a time after the giving of the opportunity to elect, the commanding officer obtains extended powers for the purposes of any provision of section 133, 134, 135 or 194.

(8) The provisions of this section requiring the giving of an opportunity to elect Court Martial trial of the charge shall apply again.

Further consequences of election for Court Martial trial

130

(1) This section applies where the accused has elected Court Martial trial of a charge.

(2) The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused refer to a commanding officer, under section 125(2)(e)—

(a) that charge (whether or not amended by the Director), or

(b) any charge substituted under section 125(2)(b) or additionally brought under section 125(2)(c).

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