The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

Made: 23rd April 2009

Laid before Parliament: 27th April 2009

Coming into force

The Secretary of State, in exercise of the powers conferred by section 380 of the Armed Forces Act 2006 and paragraph 13 of Schedule 6 to the Counter-Terrorism Act 2008 , makes the following Order:

PART 1 — GENERAL

Citation and commencement

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• (1) This Order may be cited as the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009.

• (2) The following provisions of this Order come into force on the day after the day on which this Order is made—

• (a) in article 2(1), the definitions of “AA 1955”, “AFA 1955” and “NDA 1957”;

• (b) article 196 (complaints to employment tribunals etc).

• (3) The other provisions of this Order come into force—

• (a) so far as is necessary for any purpose mentioned in article 3 of the Armed Forces Act 2006 (Commencement No. 4) Order 2009 , on the day after the day on which this Order is made;

• (b) for all other purposes, on 31st October 2009.

Interpretation

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• (1) In this Order—

• “AA 1955” means the Army Act 1955 ;

• “AFA 1955” means the Air Force Act 1955 ;

• “NDA 1957” means the Naval Discipline Act 1957 ;

• “AFA 1966” means the Armed Forces Act 1966 ;

• “CMAA 1968” means the Court Martial Appeals Act 1968 ;

• “AFA 1976” means the Armed Forces Act 1976 ;

• “RFA 1980” means the Reserve Forces Act 1980 ;

• “AFA 1981” means the Armed Forces Act 1981 ;

• “AFA 1991” means the Armed Forces Act 1991 ;

• “RFA 1996” means the Reserve Forces Act 1996 ;

• “AFA 2001” means the Armed Forces Act 2001 ;

• “AFA 2006” means the Armed Forces Act 2006 ;

• “the Appeal Court” means the Court Martial Appeal Court;

• “civilian subject to the SDAs” is to be read in accordance with paragraph (2);

• “commencement” means the beginning of 31st October 2009;

• “the corresponding civil offence”, in relation to an SDA civil offence, means—the act or omission constituting the SDA civil offence; orif that act or omission is not punishable by the law of England and Wales, the equivalent act done or omission made in England or Wales;

• “SDA civil offence” means an offence under section 70 of AA 1955 or AFA 1955 or section 42 of NDA 1957;

• “SDA custodial sentence” has the meaning given by paragraph (3);

• “SDA offence” has the meaning given by paragraph (4);

• “SDA sentence of service detention” means a sentence of detention under section 71(1)(e) or 76C(2)(a) of AA 1955 or AFA 1955 or section 43(1)(e) of NDA 1957;

• “subject to air-force law” has the same meaning as in AFA 1955;

• “subject to military law” has the same meaning as in AA 1955;

• “subject to NDA 1957” means subject to NDA 1957, within the meaning of that Act.

• (2) For the purposes of this Order a person was, at any time before commencement, a “civilian subject to the SDAs” if at that time any provision of AA 1955, AFA 1955 or NDA 1957 applied to him by virtue of section 209(1) or (2) of AA 1955 or AFA 1955 or section 118(1) or (2) of NDA 1957 (application of SDAs to civilians).

• (3) In this Order “SDA custodial sentence” means any of the following—

• (a) a sentence of imprisonment passed by—

• (i) a court-martial;

• (ii) a Standing Civilian Court;

• (iii) the Appeal Court before commencement; or

• (iv) the House of Lords or the Supreme Court, before commencement, on an appeal brought from a decision of the Appeal Court;

• (b) a sentence of custody for life under section 71A(1A) or (1B) of AA 1955 or AFA 1955 or section 43A(1A) or (1B) of NDA 1957;

• (c) a sentence of detention during Her Majesty's pleasure under section 71A(3) of AA 1955 or AFA 1955 or section 43A(3) of NDA 1957;

• (d) a sentence of detention under section 71A(4) of AA 1955 or AFA 1955 or section 43A(4) of NDA 1957 (detention for serious offence committed by young person);

• (e) a custodial order under—

• (i) section 71AA of, or paragraph 10 of Schedule 5A to, AA 1955 or AFA 1955; or

• (ii) section 43AA of, or paragraph 10 of Schedule 4A to, NDA 1957.

• (4) In this Order “SDA offence” means any of the following—

• (a) any offence under Part 2 of AA 1955 or AFA 1955;

• (b) any offence under Part 1 of NDA 1957;

• (c) an offence under section 47K of that Act;

• (d) an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed before commencement;

• (e) an offence under section 18 or 20 of AFA 1991 committed before commencement;

• (f) an offence under any of sections 95 to 97 of RFA 1996 committed before commencement;

• (g) an offence under paragraph 5(1) of Schedule 1 to that Act committed before commencement by a person within paragraph (5) below.

• (5) A person is within this paragraph if—

• (a) after committing the offence and before commencement, he became a member of a reserve force and—

• (i) he remained such a member until commencement; or

• (ii) immediately before commencement, he was subject to military law, air-force law or NDA 1957; or

• (b) after commencement, he becomes a member of the reserve forces.

SDA offences to be dealt with under this Order

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A person who has committed an SDA offence shall be liable to be tried and punished in accordance with this Order (and not, except to the extent provided by article 55 or 84, under AA 1955, AFA 1955 or NDA 1957).

Offences triable by civilian court

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• (1) Insofar as an offence under an enactment repealed by AFA 2006 is triable by a civilian court—

• (a) nothing in this Order affects the application of section 16 of the Interpretation Act 1978 (general savings) in relation to the offence;

• (b) subject to paragraph (2), nothing in this Order applies in relation to the offence.

• (2) Paragraph (1)(b) does not affect the application of articles 154 and 199 to 201.

“Service offence” in AFA 2006 not to include offences committed before commencement

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In section 50(2) of AFA 2006 (definition of “service offence”), references in paragraphs (g) to (i) to an offence do not include one committed before commencement.

PART 2 — LIABILITY FOR SDA OFFENCES

Liability for SDA offences

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• (1) A person guilty of an SDA offence is liable to any punishment mentioned in the Table in section 164 of AFA 2006; but this is subject to article 7.

• (2) Section 164(2) and (3) of AFA 2006 (interpretation etc) apply in relation to paragraph (1).

Punishment may not be more severe than maximum court-martial punishment

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• (1) A sentence awarded in respect of an SDA offence may not be more severe than the maximum court-martial sentence.

• (2) In this article “the maximum court-martial sentence” means the maximum sentence that could have been awarded if the offender (having been convicted on the date he was actually convicted) had been sentenced for that offence by a relevant court-martial according to the law in force at the time the offence was committed.

• (3) In paragraph (2) “a relevant court-martial” means—

• (a) where paragraph (4) applies, a district court-martial;

• (b) otherwise, a general court-martial or (as the case may be) a court-martial under NDA 1957.

• (4) This paragraph applies where—

• (a) the offender was arraigned under section 91A of AA 1955 or AFA 1955 on a charge of the offence in question (or on a charge of another offence on the trial of which he was convicted of the offence in question);

• (b) at the time of arraignment, the charge sheet specified that the charge was to be tried by a district court-martial; and

• (c) it is not the case that a district court-martial was convened to try the charge and was dissolved before commencement without reaching a finding.

• (5) Any provision of Part 9 of AFA 2006 which requires a court or officer to treat a matter as an aggravating factor is subject to this article.

Civilian offenders

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• (1) In Schedule 3 to AFA 2006 (which modifies the Table in section 164 in relation to civilian offenders etc), the reference in paragraph 1(2) to a service offence includes an SDA offence.

• (2) A person who (but for this paragraph) would be a civilian offender under paragraph 1(2) of Schedule 3 to AFA 2006 as modified by this article is not a civilian offender for the purposes of Part 1 of that Schedule if that person was subject to military law, air-force law or NDA 1957—

• (a) when the offence was committed; or

• (b) at any time between committing the offence and commencement.

PART 3 — CERTAIN ACTS BEFORE COMMENCEMENT

Offence incomplete at commencement

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• (1) This article applies where an offence under an enactment mentioned in article 2(4)(a), (b), (f) or (g) is partly committed by a person before commencement.

• (2) For the purposes of this article an offence is partly committed by a person before commencement if—

• (a) an act or omission by the person, proof of which is required for conviction of the offence, occurs before commencement; and

• (b) a relevant event occurs after commencement.

• (3) In this article “relevant event”, in relation to an offence, means any act, omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence.

• (4) Where this article applies in relation to an offence under an enactment mentioned in article 2(4)(a) or (b), any question whether that offence has been committed is to be decided as if the SDAs were still in force at the time of the relevant events that occurred after commencement.

• (5) Where this article applies in relation to an offence under an enactment mentioned in article 2(4)(f) or (g), the offence is to be treated for the purposes of articles 2(4) and 5 as having been committed before commencement.

• (6) Where this article applies in relation to an offence—

• (a) each of articles 7 and 13 has effect as if in paragraph (2) of that article the reference to the time the offence was committed were to the time of the act or omission referred to in paragraph (2)(a) above; and

• (b) for the purposes of article 20(1) and (2) the offence is to be treated as having been committed at that time.

• (7) In this article “the SDAs” means—

• (a) the provisions of AA 1955, AFA 1955 and NDA 1957 whose repeal came into force at commencement; and

• (b) any subordinate legislation made under those provisions that was in force immediately before commencement.

Course of conduct carried on over commencement

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• (1) This article applies where—

• (a) an act or omission, proof of which is required for conviction of an offence under an enactment mentioned in article 2(4)(a), (b) or (f), is or can be a continuing course of conduct; and

• (b) such a continuing course of conduct is carried on partly before and partly after commencement.

• (2) Where this article applies in relation to an offence under an enactment mentioned in article 2(4)(a) or (b), any question whether that offence has been committed is to be decided as if the SDAs had been in force during the whole of the period over which the continuing course of conduct was carried on.

• (3) Where this article applies in relation to an offence under an enactment mentioned in article 2(4)(f), the offence is to be treated for the purposes of articles 2(4) and 5 as having been committed before commencement.

• (4) Where this article applies in relation to an offence, each of articles 7 and 13 has effect as if in paragraph (2) of that article the reference to the time the offence was committed were to the time immediately before commencement.

• (5) In this article “the SDAs” has the same meaning as in article 9.

Conduct at a time unknown

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• (1) This article applies where it is alleged that a relevant act took place at an unknown time between—

• (a) a particular time before commencement; and

• (b) a particular time after commencement.

• (2) In this article a “relevant act” means an act or omission which—

• (a) if it took place before commencement (or at a particular time before commencement), would be an SDA offence under an enactment mentioned in article 2(4)(a), (b), (d) or (f); and

• (b) if it took place after commencement (or at a particular time after commencement), would be a service offence.

• (3) If the relevant act would (if it took place before commencement, or at a particular time before commencement) be an offence under an enactment mentioned in article 2(4)(a) or (b), any question whether the relevant act is an SDA offence is to be decided as if the SDAs had remained in force until the time referred to in paragraph (1)(b) above.

• (4) Where the relevant act is an offence under an enactment mentioned in article 2(4)(f), for the purposes of articles 2(4)(f) and 5 it is to be taken to be such an offence committed before commencement.

• (5) Where a person is convicted of an SDA offence by virtue of this article—

• (a) article 7 has effect as if the reference in paragraph (2) of that article to the time the offence was committed were to the time referred to in paragraph (1)(a) above; and

• (b) the sentence awarded for the offence must not be more severe than the maximum sentence that could be awarded for the service offence if the relevant act were known to have taken place at the time referred to in paragraph (1)(b) above.

• (6) For the purposes of articles 13(2) and 20(1) and (2), any question whether the relevant act took place at a time when a person was a civilian subject to the SDAs is to be decided as if the SDAs had remained in force until the time referred to in paragraph (1)(b) above.

• (7) If the relevant act is an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957, it is to be treated for the purposes of article 172 as having been committed after commencement.

• (8) In this article “the SDAs” has the same meaning as in article 9.

PART 4 — JURISDICTION

Jurisdiction of the Court Martial

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The Court Martial has jurisdiction to try any SDA offence except an offence within section 70(4) of AA 1955 or AFA 1955 or section 48(2) of NDA 1957 (serious SDA civil offences committed in UK).

Jurisdiction of the Service Civilian Court

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• (1) The Service Civilian Court has jurisdiction to try any SDA offence committed outside the British Islands by a civilian except—

• (a) an offence within paragraph (3); or

• (b) an offence in relation to which section 51(6) of AFA 2006 applies (defendant is member of regulars or reserves or liable to recall).

• (2) For the purposes of paragraph (1) an offence was committed by a civilian if it was committed by a person who, at the time when it was committed, was a civilian subject to the SDAs.

• (3) The offences within this paragraph are—

• (a) an indictable-only SDA civil offence;

• (b) an offence under section 57 of AA 1955 or AFA 1955 or section 38 of NDA 1957 (offences in relation to courts);

• (c) an offence under section 61 of AA 1955 or AFA 1955 or section 34A of NDA 1957 (false statements on enlistment etc);

• (d) an offence under RFA 1996.

• (4) For the purposes of paragraph (3)(a) an SDA civil offence is “indictable-only” if the corresponding civil offence is, under the law of England and Wales, an offence which if committed by an adult is triable only on indictment; but this is subject to paragraph (5).

• (5) Where the defendant is aged under 18 at the time a decision under section 279 of AFA 2006 is made, an SDA civil offence is “indictable-only” for the purposes of paragraph (3)(a) if (and only if)—

• (a) the corresponding civil offence is murder, manslaughter or an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing death of child etc); or

• (b) section 51A of the Firearms Act 1968 would apply if the accused were convicted by a civilian court in England and Wales of the corresponding civil offence.

• (6) Where section 279 of AFA 2006 is disapplied by article 132(2), the reference in paragraph (5) to the time a decision under that section is made is to be read as to the time immediately before commencement.

Charges capable of being heard summarily

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In section 52 of AFA 2006 (charges capable of being heard summarily), the reference in subsection (4)(a) to being subject to service law is to be read, in relation to any time before commencement, as to having been subject to military law, air-force law or NDA 1957.

Offences that may be dealt with at a summary hearing

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The following SDA offences may be dealt with at a summary hearing (and accordingly fall within section 52(2) of AFA 2006)—

• (a) an SDA civil offence as respects which the corresponding civil offence is an offence within section 53(3)(a) or (b) of AFA 2006;

• (b) an offence under section 29, 29A or 30(c) of AA 1955 or AFA 1955;

• (c) an offence under any of sections 33 to 39 (except section 37) of AA 1955 or AFA 1955;

• (d) an offence under section 42(1)(a), 43, 43A, 44, 44A(1)(c), (d) or (e), 44B(2), 45 or 46 of AA 1955 or AFA 1955;

• (e) an offence under any of sections 50 to 56 (except section 54(1)) of AA 1955 or AFA 1955;

• (f) an offence under section 60, 61, 62, 65, 66 or 69 of AA 1955 or AFA 1955;

• (g) an offence under section 68 of AA 1955 or AFA 1955 of attempting to commit an offence within any of paragraphs (b) to (f) above;

• (h) an offence under section 75J of AA 1955 or AFA 1955;