First Group of Parts – Discipline
Part 2 – Jurisdiction and Time Limits
Chapter 1 – Jurisdiction
131.This Chapter describes the charges that the Court Martial, the SCC and a CO can hear.
Court Martial
Section 50: Jurisdiction of the Court Martial
132.This section provides that the Court Martial can try any service offence, and defines a “service offence”.
Service Civilian Court
Section 51: Jurisdiction of the Service Civilian Court
133.Section 277 establishes the SCC. Section 51 sets out the offences as respects which the court has jurisdiction. The court replaces the Standing Civilian Courts that were created by the Armed Forces Act 1976. Essentially the SCC has the same jurisdiction as that of its predecessors, which is in turn similar to the jurisdiction exercised by a magistrates’ court in England and Wales.
134.The court may try any service offence (as defined in section 50) committed outside the British Islands by a civilian who was subject to service discipline at the time of the offence, unless a listed exception applies. The most significant exception in relation to an adult is any offence which under the law of England and Wales can be tried only on indictment, that is, only by the Crown Court. However, in relation to juveniles the SCC has the power (akin to that of a youth court in England and Wales) to try offences that in relation to an adult would be indictable only, apart from the listed homicide and firearms offences.
Commanding officers
Section 52: Charges capable of being heard summarily
135.This section defines what is meant by references in the Act to a charge which is capable of being heard summarily. A charge falls within this category if all the conditions in subsections (2) to (4) are satisfied.
136.Condition A is that the offence charged must be an offence that may be dealt with at summary hearing (i.e. one of those listed in section 53).
137.Condition B prevents a charge from being heard summarily if the accused is an officer above the rank of commander, lieutenant-colonel or wing commander, or a civilian.
138.Condition C relates to the accused’s membership of a force (or, in some cases, his liability to recall). In most cases the accused must be subject to service law, or a volunteer reservist or an ex-regular reservist subject to an additional duties commitment, throughout the period between the commission of the offence and the completion of the summary hearing. If the charge is one of absence without leave on the part of a reservist, however, it is sufficient that the accused has been a reservist (whether volunteer or ex-regular) throughout that period. If the charge is one of absence without leave on the part of an ex-regular who is not a reservist but is liable to recall, the accused must either be liable to recall or a member of the regular forces (i.e. actually recalled) throughout that period.
Section 53: Offences that may be dealt with at a summary hearing
139.This section details those offences that may be heard summarily. It makes it clear that where a criminal conduct offence may be heard summarily an offence of attempting to commit the substantive offence may also be dealt with at a summary hearing.
140.With regard to criminal conduct offences, this section makes it clear that only those offences that are listed in Schedule 1 may be dealt with at a summary hearing. The Secretary of State is given the power to amend Schedule 1 by order made by statutory instrument (subject to the “affirmative resolution” procedure which requires the order to be laid in draft before both Houses of Parliament and be approved by resolution of each House).
Section 54: Charges which may be heard summarily only with permission or by senior officer
141.This section prevents a CO who is below the rank of rear admiral, major-general or air vice-marshal from hearing a charge of a criminal conduct offence listed in Part 2 of Schedule 1 (or an attempt to commit such an offence) without the permission of higher authority.
Chapter 2 – Time Limits for Commencing Proceedings
142.This Chapter prescribes time limits for the bringing of charges under the Act. The time limits in sections 55 to 60 are cumulative—that is, a charge cannot be brought outside the period specified by any section that applies, even if another section also applies and the period specified by that other section has not expired. In the case of a charge under the Reserve Forces Act 1996, however, the time limit is determined by section 62 alone.
Time limits for offences other than Reserve Forces Act offences
Section 55: Time limit for charging former member of a regular or reserve force
143.Where a person is alleged to have committed a service offence while a member of a regular or reserve force, this section provides that he cannot be charged with the offence more than six months after he ceased to be a member. This is subject to section 61(2), which allows the charge to be brought if the Attorney General consents.
Section 56: Time limit for charging certain members or former members of ex-regular reserve forces
144.Where a person is alleged to have committed a service offence while he was an ex-regular reservist subject to an additional duties commitment under section 25 of the Reserve Forces Act 1996, this section provides that he cannot be charged with the offence more than six months after the end of that commitment. This is subject to section 61(2), which allows the charge to be brought if the Attorney General consents.
Section 57: Time limit for charging person formerly subject to service law
145.Where a person is alleged to have committed a service offence while he was subject to service law, and was not a volunteer reservist or an ex-regular reservist subject to an additional duties commitment, this section provides that he cannot be charged with the offence more than six months after he ceased to be subject to service law. This is subject to section 61(2), which allows the charge to be brought if the Attorney General consents.
Section 58: Time limit for charging civilian formerly subject to service discipline
146.Where a person is alleged to have committed a service offence while he was a civilian subject to service discipline, this section provides that he cannot be charged with the offence more than six months after he ceased to be a civilian subject to service discipline. This is subject to section 61(2), which allows the charge to be brought if the Attorney General consents.
147.There are two exceptions. First, if the person became subject to service law at the same time as ceasing to be a civilian subject to service discipline, the six month period does not begin to run until he ceases to be subject to service law (when section 57 applies instead). Secondly, under Schedule 15 certain civilians are subject to service discipline only while in certain designated areas or while in any area outside the British Islands. If he ceases to be a civilian subject to service discipline only because he left such an area but was still residing or staying in that area, the six month period does not begin to run.
Section 59: Time limit for charging offence under section 107
148.This section sets a time limit for bringing a charge of an offence under section 107 (breach of requirement imposed on release from custody), or adding such a charge in proceedings for another offence. The time limit is six months from the date of the offence or two months from the date of the suspect’s apprehension, whichever is the later.
Section 60: Time limit for charging offence under section 266
149.This section sets a time limit for bringing a charge of an offence under section 266 (failure to comply with a financial statement order). The time limit is two years from the date of the offence or six months from the date it becomes known to the Service Prosecuting Authority, whichever is the earlier.
Section 61: Sections 55 to 60: exceptions and interpretation
150.This section makes general provision in relation to sections 55 to 60. Its effect is mostly explained at paragraph 142 above. Subsection (1) also makes it clear that the time limits imposed by those sections (except section 59) apply only to the commencement of proceedings for the offence, and not to the addition of a charge in proceedings that have already been commenced.
Time limit for Reserve Forces Act offences
Section 62: Time limit for charging Reserve Forces Act offences
151.This section sets out the time limit for charging a person under the Act with an offence under sections 95 to 97 of the Reserve Forces Act 1996. The time limit is the point at which all the periods specified in subsection (1) have expired. The time limits in sections 55 to 60 do not apply.
Chapter 3 – Double Jeopardy
152.This Chapter provides for the barring of service proceedings by the outcome of previous service or civilian proceedings, and the barring of civilian proceedings by the outcome of previous service proceedings.
Section 63: Service proceedings barring subsequent service proceedings
153.This section bars the trial or hearing of a charge of a service offence if the accused has previously been convicted or acquitted of the offence charged, or has had it taken into consideration when being sentenced for another offence. The section also applies where the two offences are not identical but are related in one of the ways specified in subsection (3).
Section 64: Service proceedings barring subsequent civilian proceedings
154.This section bars the trial of a charge by a civilian court in the UK or the Isle of Man if the accused has previously been convicted or acquitted of an offence under section 42 (criminal conduct) or has had such an offence taken into consideration when being sentenced, and, under the double jeopardy rules of the jurisdiction in which the court sits (i.e. England and Wales, Scotland, Northern Ireland or the Isle of Man, as the case may be), the trial would be barred if he had been convicted or acquitted by an English court of the corresponding civilian offence.
Section 65: Sections 63 and 64: supplementary
155.This section provides for the application of sections 63 and 64 where the DSP makes a direction under section 127 barring future proceedings.
Section 66: Civilian proceedings barring subsequent service proceedings
156.This section bars the trial or hearing of a charge of an offence under section 42 if, under the double jeopardy rules of England and Wales, a civilian court could not try a charge of the corresponding civilian offence (because the accused has previously been convicted or acquitted of that offence or a related offence). The section similarly bars the trial or hearing of a charge of any other service offence which requires proof of an offence under English law if the accused could not be tried for the civilian offence because he has previously been acquitted of it.
