Legalize / United Kingdom / Statutory-Instrument

The Armed Forces (Disposal of Property) Regulations 2023

Type Statutory-Instrument

Publication 2023-10-26

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 26th October 2023

Laid before Parliament: 1st November 2023

Coming into force: 22nd November 2023

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 94(1) and (2), 94A(2), (4), (5), (6) and (7) and 373(5) of the Armed Forces Act 2006[^f00001].

Citation, commencement and extent

1

(1) These Regulations may be cited as the Armed Forces (Disposal of Property) Regulations 2023.

(2) These Regulations come into force on 22nd November 2023.

(3) These Regulations extend to England and Wales, Scotland, Northern Ireland, the Isle of Man and the British overseas territories (except Gibraltar).

Interpretation

2

In these Regulations—

“the Act” means the Armed Forces Act 2006;

“judge advocate” means a judge advocate specified by the Judge Advocate General for the purposes of making an order or hearing an appeal under these Regulations;

“offender” means the person awarded the deprivation order that relates to the property;

“service police” means any service police force or the tri-service serious crime unit.

Disposal of property by order of judge advocate

3

(1) Where—

(a) any property has come into the possession of the service police or a person's commanding officer in connection with the investigation of a service offence and—

(i) the Director of Service Prosecutions has directed a charge to be allocated for disposal in the Court Martial or Service Civilian Court, or

(ii) a notice of appeal to the Summary Appeal Court has been served on the person's commanding officer,

and

(b) an application for an order under paragraph (2) has been sent to the court administration officer,

a judge advocate may make an order under paragraph (2).

(2) A judge advocate may—

(a) make an order for the delivery of the property to the person appearing to the judge advocate to be the owner of the property, or

(b) if the owner cannot be ascertained or disclaims their rights in the property, make such order for the disposal of the property, including its destruction, retention or sale, as the judge advocate considers appropriate.

(3) An application under paragraph (1)(b) may be made by—

(a) a service policeman, where the service police are in possession of the property,

(b) a commanding officer in possession of the property,

(d) a person in whose possession the property was before it was seized.

(4) Before making—

(a) any order, a judge advocate must invite the service police or commanding officer in possession of the property to make representations concerning delivery of the property to the person appearing to be the owner or disposal of the property;

(b) an order for the destruction or sale of the property, a judge advocate must invite any person or persons mentioned in paragraph 3(c) or (d) to make representations concerning retention of the property concerned.

(5) Where an order is made under paragraph (2), the court administration officer must send a copy of it to—

(a) the person who applied for the order;

(b) the person appearing to the judge advocate to be the owner of the property (unless that person is the applicant);

(c) the service police or the commanding officer in possession of the property (unless a service policeman or that commanding officer, as the case may be, is the applicant).

(6) An order made under paragraph (2) cannot take effect until the time limit for an appeal under regulation 10 has expired with no appeal being made, or where an appeal has been made under that regulation, until the appeal has been determined.

(7) Where an order is made under paragraph (2), it does not affect the right of any person to take proceedings for the recovery of that property, but on the expiration of six months from the date of the order, that right ceases.

Disposal of property subject to deprivation order: by order of judge advocate

4

(1) Where any property is in the possession of the service police or a person's commanding officer after a deprivation order has been made in relation to it by the Court Martial, the Service Civilian Court, or the Summary Appeal Court, this regulation applies.

(2) Where an application for an order under paragraph (3) has been made by a person claiming to be the owner of the property by sending it to the court administration officer, a judge advocate may make an order under paragraph (3).

(3) A judge advocate may make an order for the delivery of the property to the person appearing to the judge advocate to be the owner of the property, if the conditions in section 94A(3) of the Act are met.

(4) Where—

(a) no application has been made under paragraph (2) within 6 months of the deprivation order having been made, or if such an application has been made within that period, it was not successful, and

(b) an application for an order under paragraph (5) has been made by a service policeman or the offender’s commanding officer in relation to the property by sending it to the court administration officer,

a judge advocate may make an order under paragraph (5).

(5) A judge advocate may make such order for the disposal of the property, including its destruction, retention or sale, as the judge advocate considers appropriate, subject to paragraph (7).

(6) Before making an order under paragraph (3) or (5), a judge advocate must invite representations concerning the disposal of the property from—

(a) the service police, unless a service policeman is the applicant;

(b) the commanding officer in possession of the property (if there is one), unless that person is the applicant.

(7) Property may not be transferred into the ownership of the Secretary of State where the Court Martial or Service Civilian Court that made the deprivation order also made an order under section 177F(2) of the Act in respect of that property.

(8) Where an order is made under paragraph (3) or (5), the court administration officer must send a copy of it to—

(a) the person who applied for the order;

(b) the service police or the commanding officer in possession of the property (unless a service policeman or that commanding officer, as the case may be, is the applicant).

(9) An order made under paragraph (3) or (5) cannot take effect until the time limit for an appeal under regulation 10 has expired with no appeal being made, or where an appeal has been made under that regulation, until the appeal has been determined.

(10) Where the offender has, within 6 months of the deprivation order being made, appealed against—

(a) the award of that deprivation order, or

(b) the conviction for which that deprivation order was awarded,

the property may not be disposed of until the appeal has been determined.

(11) Where an order has been made under paragraph (3) or (5), it does not affect the right of any person to take proceedings for the recovery of that property, but on the expiration of 6 months from the date of the order, that right ceases.

Disposal of property on determination of commanding officer of person charged with a service offence

5

(1) Where—

(a) a person is charged with a service offence,

(b) property has come into the possession of the service police or that person's commanding officer in connection with the investigation of that service offence, and

that commanding officer may make a determination under paragraph (2).

(2) A commanding officer may—

(a) make a determination for the delivery of the property to the person appearing to the commanding officer to be the owner of the property, or

(b) if the owner cannot be ascertained or disclaims their rights in the property, make such determination for the disposal of the property, including delivering it to the service police for destruction, retention or sale, as the commanding officer considers appropriate.

(3) An application under paragraph (1)(c) may be made by—

(a) a service policeman,

(b) a person claiming to be the owner of the property, or

(4) Before making—

(a) any determination, if the property is in the possession of the service police, a commanding officer must invite the service police in possession of the property to make representations concerning delivery of the property to the owner or disposal of the property;

(b) a determination for disposal of the property by destruction or sale, a commanding officer must invite any person or persons mentioned in paragraph (3)(b) or (c) to make representations concerning its retention.

(5) Where a determination is made under paragraph (2), a commanding officer must send a copy of it to—

(a) the person who made the application,

(b) the person appearing to the commanding officer to be the owner of the property (unless that person is the applicant), and

(6) A determination made under paragraph (2) cannot take effect until the time limit for an appeal under regulation 10 has expired with no appeal being made, or where an appeal has been made under that regulation, until the appeal has been determined.

Disposal of property subject to deprivation order: on determination of commanding officer of offender

6

(1) Where any property is in the possession of the service police or a person’s commanding officer after a deprivation order has been made in relation to it by that commanding officer, this regulation applies.

(2) Where an application for a determination under paragraph (3) has been made by a person claiming to be the owner of the property by sending it to an offender’s commanding officer, that commanding officer may make a determination under paragraph (3).

(3) A commanding officer may make a determination for delivery of the property to the person appearing to the commanding officer to be the owner of the property if the conditions in section 94A(3) of the Act are met.

(4) Where no application has been made under paragraph (2) within 6 months of the deprivation order having been made, or if such an application has been made within that period, it was not successful, a commanding officer may make a determination under paragraph (5) where—

(a) an application for a determination under paragraph (5) has been made by a service policeman by sending it to the offender’s commanding officer, or

(b) the property is in the possession of the commanding officer, of that officer’s own motion.

(5) A commanding officer may make any determination for the disposal of the property, including delivering it to the service police for destruction, retention or sale, as the commanding officer considers appropriate.

(6) Before making a determination the commanding officer must invite representations concerning the disposal of the property from the service police, unless a service policeman is the applicant.

(7) Where a determination is made under paragraph (3) or (5), the commanding officer must send a copy of it to—

(a) the person who applied for the order;

(b) the service police in possession of the property (unless a service policeman is the applicant).

(8) A determination made under paragraph (3) or (5) cannot take effect until the time limit for an appeal under regulation 10 has expired with no appeal being made, or where an appeal has been made under that regulation, until the appeal has been determined.

(9) Where the offender has, within 6 months of the deprivation order being made, appealed against—

(a) the award of that deprivation order, or

(b) the finding that the charge has been proven for which that deprivation order was awarded,

the property may not be disposed of until the appeal has been determined.

Disposal of property on determination of commanding officer in other circumstances

7

(1) Subject to regulations 4 and 6, where—

(a) any property has come into the possession of the service police or a person's commanding officer in connection with the investigation of a service offence,

(b) no person is currently charged with a service offence as a result of that investigation, and

that commanding officer may make a determination under paragraph (2).

(2) A commanding officer may make a determination for the delivery of the property to—

(a) the person in whose possession the property was before it was seized, or

(b) the person who claims to be the owner of the property.

(3) An application under paragraph (1)(c) may be made by—

(a) a person claiming to be the owner of the property, or

(b) a person in whose possession the property was before it was seized.

(4) Before making a determination for delivery of the property, a commanding officer must invite representations from the service police.

(5) Where a determination has been made under this regulation, the commanding officer must send a copy of it to—

(a) the person who made the application,

(b) the person appearing to the commanding officer to be the owner of the property (unless that person is the applicant), and

(6) A determination made under paragraph (2) cannot take effect until the time limit for an appeal under regulation 10 has expired with no appeal being made, or where an appeal has been made under that regulation, until the appeal has been determined.

(7) For the purposes of paragraph (1)(c), “a commanding officer” means—

(a) the commanding officer of a person in whose possession the property was before it was seized under Part 3 of the Act, or

(b) the commanding officer of a person who claims to be the owner of the property.

Retention of property

8

(1) If—

(a) an order under regulation 3(2)(b) or 4(5) or a determination under regulation 5(2)(b) or 6(5) is to be made, and

(b) in the opinion of the judge advocate or commanding officer (as the case may be), the property in question (other than money) can be used for service police purposes,

the judge advocate may order or the commanding officer determine that the property is to be retained by the service police.

(2) Where property is retained for service police purposes, it vests in the Provost Marshal of the service police in possession of the property on the making of the order or determination.

(3) An order or determination under paragraph (1) must be recorded in writing and that record must include the date on which the order or determination was made.

Sale of Property

9

(1) If an order under regulation 3(2)(b) or 4(5) or a determination under regulation 5(2)(b) or 6(5) is to be made, the judge advocate may order, or the commanding officer may determine (as the case may be), that the property in question (other than money) may be sold.

(2) The proceeds of all sales under these Regulations and any money to which these Regulations apply must be paid into a Service Fund Sub Account maintained for a charitable purpose.

Appeals

10

(1) A person who comes within paragraph (2) may appeal against the order of a judge advocate or the determination of a commanding officer made under these Regulations by sending a written notice of appeal to the court administration officer within 14 days of the original decision being made or conveyed to that person, whichever is later, subject to paragraph (14).

(2) The persons who may appeal against an order or determination are—

(a) a service policeman;

(b) a person claiming to be the owner of the property;

(3) The notice of appeal must state—

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