138.Sections 100 and 101 apply the offences created to personnel in organisations such as the police and customs, but not to service personnel operating in the course of their military duties. When acting in the course of their duties, service personnel may be subject to separate disciplinary procedures if found under the influence of alcohol or drugs. However, service men and women carrying out aviation functions during their free time will be subject to this legislation.
139.Section 101 disapplies the offences for the civil or military components of visiting military forces and for personnel belonging to international headquarters or defence organisations such as NATO, but only whilst carrying out their duties. UK military personnel in analogous circumstances are protected similarly from criminal prosecution when they are based overseas.
140.Section 101 relies upon certain definitions in the Army Act 1955, the Visiting Forces Act 1952 and the International Headquarters and Defence Organisations Act 1964. These are as follows:
Section 225(1) of the Army Act 1955 provides that:
“Her Majesty’s air forces, Her Majesty’s military forces or Her Majesty’s naval forces, except where otherwise expressly provided, does not include any Commonwealth force”
Section 3 of the Visiting Forces Act 1952 protects members of visiting forces and members of the civilian components of such forces from being tried for an offence by a United Kingdom Court in certain circumstances.
By virtue of section 12(1) of the Visiting Forces Act 1952, “visiting force” for the purpose of section 3 means:
“any body, contingent or detachment of the forces of a country to which [the] provision applies, being a body, contingent or detachment for the time being present in the United Kingdom on the invitation of Her Majesty’s Government in the United Kingdom”.
The International Headquarters and Defence Organisations Act 1964 defines headquarters as a headquarters or organisation designated by Order in Council under that Act. The International Headquarters and Defence Organisations (Designation and Privileges) Order 1965 lists the organisations to which the Act applies, for example Allied Forces North Western Europe. A military member of a headquarters is defined by the 1964 Act as:
“a member of any country’s forces who is for the time being appointed to serve in the United Kingdom under the orders of a headquarters, except that it does not include a member of the home forces.”
Section 10 of the Visiting Forces Act 1952 and paragraph 2 of the Schedule to the International Headquarters and Defence Organisations Act 1964 make similar provision to define a member of the civilian component of a visiting force and a civilian member of a headquarters etc. Such a member must satisfy certain conditions relating to his passport which should be issued by a foreign government, contain an entry confirming his status and a note that the Secretary of State recognises that entry.