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

• Citation: S.I. 2009/1059
• Sections: 284

Section 1 Citation and commencement

(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.

Section 2 Interpretation

(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; or

if 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.

Section 3 SDA offences to be dealt with under this Order

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).

Section 4 Offences triable by civilian court

(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.

Section 5 “Service offence” in AFA 2006 not to include offences committed before commencement

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.

Section 6 Liability for SDA offences

(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).

Section 7 Punishment may not be more severe than maximum court-martial punishment

(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.

Section 8 Civilian offenders

(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.

Section 9 Offence incomplete at commencement

(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.

Section 10 Course of conduct carried on over commencement

(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.

Section 11 Conduct at a time unknown

(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.

Section 12 Jurisdiction of the Court Martial

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).

Section 13 Jurisdiction of the Service Civilian Court

(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.

Section 14 Charges capable of being heard summarily

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.

Section 15 Offences that may be dealt with at a summary hearing

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;

(i) an offence under section 5(c), 6 or 7 of NDA 1957;

(j) an offence under any of sections 11 to 14A of that Act;

(k) an offence under section 17, 18, 21, 22 or 25 of that Act;

(l) an offence under section 27 of that Act of—

(i) falsely pretending to be suffering from sickness or disability; or

(ii) failing to do anything whereby any sickness or disability is prolonged or aggravated;

(m) an offence under section 28, 29, 29A(1)(c), (d) or (e), 29B(2), 30, 31 or 33A(2) of that Act;

(n) an offence under any of sections 33B to 35 of that Act;

(o) an offence under section 36A, 37 or 39 of that Act;

(p) an offence under section 40 of that Act of attempting to commit an offence within any of paragraphs (i) to (o) above;

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

(r) an offence under section 96 or 97 of RFA 1996 of absence without leave.

Section 16 Charges in respect of SDA offences that may be heard summarily only with permission or by senior officer

For the purposes of section 54(1) of AFA 2006 (charges which may be heard summarily only with permission or by senior officer), the offences within section 54(2) of that Act include an SDA civil offence as respects which the corresponding civil offence is an offence within section 54(2)(a) or (b).

Section 17 No charge to be brought where SDA time limit for trial expired before commencement etc

(1) A person may not be charged with an offence if, immediately before commencement, section 132(1) of AA 1955 or AFA 1955 or section 52(1) of NDA 1957 (proceedings for SDA civil offence barred if proceedings on indictment for the corresponding civil offence time-barred) prevented proceedings from being taken against the person for the offence.

(2) A person may not be charged with an offence if, immediately before commencement, section 132(2) of AA 1955 or AFA 1955 (no person to be tried for desertion if since the offence he has served for three or more years in an exemplary manner) prevented the person from being tried for the offence.

(3) A person may not be charged with an offence (other than one within paragraph (5)) if—

(a) the offence was committed at a time when the person was subject to military law, air-force law or NDA 1957 or was a civilian subject to the SDAs; and

(b) after that time, and more than six months before commencement, the person ceased to be so subject or to be a civilian subject to the SDAs (as the case may be).

(4) Paragraph (3) applies even if the person again became subject to military law, air-force law or NDA 1957 or a civilian subject to the SDAs.

(5) Paragraphs (3) and (4) do not apply in relation to the following offences—

(a) an offence under section 31 or 32 of AA 1955 or AFA 1955;

(b) an offence of desertion within the meaning of section 132(3A) of AA 1955 or AFA 1955;

(c) an offence of mutiny or desertion within the meaning of section 52(3) of NDA 1957; or

(d) an SDA civil offence committed outside the United Kingdom where the Attorney General has consented to the bringing of the charge.

(6) In this article “ charged ” means charged under Part 5 of AFA 2006.

Section 18 General time limits for charging servicemen or former servicemen with SDA offences

(1) In sections 55 to 57 of AFA 2006 (general time limits for commencing proceedings against servicemen or former servicemen), references to a service offence include an SDA offence except one under RFA 1996.

(2) In section 55 of AFA 2006 as it applies in relation to an SDA offence—

(a) references to a person ceasing to be a member of a regular or reserve force include a person having ceased before commencement to be such a member;

(b) the reference to a person rejoining a regular or reserve force includes a person having rejoined it before commencement.

(3) In section 56 of AFA 2006 as it applies in relation to an SDA offence, references to a person ceasing to be subject to an additional duties commitment include a person having ceased before commencement to be so subject.

(4) In section 57 of AFA 2006 as it applies in relation to an SDA offence—

(a) references to a person ceasing to be subject to service law include a person having ceased to be subject to military law, air-force law or NDA 1957 except where at the time he did so he became subject to service law;

(b) references to being (or becoming) subject to service law include having been (or become) subject to military law, air-force law or NDA 1957.

Section 19 Time limits for charging civilian formerly subject to SDAs

(1) Paragraph (2) applies where a person has ceased to be a civilian subject to the SDAs, except where at the time he did so he became—

(a) subject to military law, air-force law or NDA 1957; or

(b) a civilian subject to service discipline.

(2) Where this paragraph applies—

(a) the person may not, after the end of six months beginning with the date he ceased to be a civilian subject to the SDAs, be charged with an SDA offence (other than one under RFA 1996) committed while he was such a civilian; and

(b) this applies even if he again became such a civilian (or a civilian subject to service discipline) within those six months.

(3) Where a person ceased to be a civilian subject to the SDAs and at the time he did so became subject to military law, air-force law or NDA 1957, section 57 of AFA 2006 has effect as if (in addition to the modifications made by article 18)—

(a) the reference in subsection (2) to a service offence committed while the person was subject to service law included an SDA offence (other than one under RFA 1996) committed while he was a civilian subject to the SDAs;

(b) the reference in subsection (3) to becoming subject to service law included having become a civilian subject to the SDAs.

(4) A person who ceased to be a civilian subject to the SDAs by reason only of a fact mentioned in section 209(3A)(a) or (b) of AA 1955 or AFA 1955 or paragraph 4A(a) or (b) of Schedule 4 to NDA 1957 is to be treated for the purposes of this article as not having ceased to be so subject (but nothing in this paragraph causes a person to be regarded as so subject after commencement).

(5) Section 61(1) to (3) of AFA 2006 (exceptions and interpretation) apply in relation to this article as they apply in relation to section 57 of that Act.

(6) Paragraph (7) applies where, at commencement—

(a) a person is residing or staying in an area designated for the purposes of Schedule 15 to AFA 2006, and would be a civilian subject to service discipline if in that area;

(b) a person is residing or staying outside the British Islands, and would be a civilian subject to service discipline if outside the British Islands; or

(c) a person—

(i) has been designated for the purposes of paragraph 7 of Schedule 15 to AFA 2006;

(ii) is residing or staying in an area which the designation specifies as an area that the person must be in for the designation to apply; and

(iii) would be a civilian subject to service discipline if in that area.

(7) Where this paragraph applies, the person is to be regarded for the purposes of paragraph (1) as becoming a civilian subject to service discipline at commencement.

Section 20 Time limit for charging civilian formerly subject to service discipline with SDA offence

(1) In section 58(2)(a) of AFA 2006 (time limit where person ceases to be a civilian subject to service discipline without becoming subject to service law), the reference to a service offence committed while the person was a civilian subject to service discipline includes an SDA offence (other than one under RFA 1996) committed while he was a civilian subject to the SDAs.

(2) Where section 58(3) of AFA 2006 (time limit where person ceases to be civilian subject to service discipline on becoming subject to service law) applies, section 57 of that Act has effect as if (in addition to the modifications made by section 58(3)) the reference in section 57(2) to a service offence committed while the person was subject to service law included an SDA offence (other than one under RFA 1996) committed while he was a civilian subject to the SDAs.

(3) Where at commencement a person falls within paragraph (a), (b) or (c) of article 19(6), the person is to be treated for the purposes of section 58 of AFA 2006 as being a civilian subject to service discipline for so long as the person continues to fall within that paragraph.

Section 21 Time limit for charging SDA offence of failing to comply with requirement imposed on release from custody

Section 59 of AFA 2006 (time limit for charging offence under section 107 of AFA 2006) applies in relation to an offence under section 75J of AA 1955 or AFA 1955 or section 47K of NDA 1957 as it applies in relation to an offence under section 107 of AFA 2006.

Section 22 Time limits for charging RFA offences

(1) In section 62 of AFA 2006 (time limit for charging Reserve Forces Act offences), the reference to a Reserve Forces Act offence includes an SDA offence under RFA 1996.

(2) In section 62 of AFA 2006 as it applies by reason of paragraph (1) above, the reference to a person's commanding officer is to be read, as regards any time before commencement, without regard to the definition in AFA 2006 of that expression.

Section 23 False statements made on enlistment

(1) Except where paragraph (2) applies—

(a) the Court Martial may not try a person for an offence under section 61 of AA 1955 or AFA 1955 or section 34A of NDA 1957 (false statements made on enlistment); and

(b) a charge against a person in respect of such an offence may not be heard summarily by an officer.

(2) This paragraph applies if the person became subject to military law, air-force law or NDA 1957 and remained so until commencement.

Section 24 Breach of community supervision order

No proceedings shall be taken against a person for an offence mentioned in article 2(4)(d) unless the trial is begun within six months after the end of the period specified in the community supervision order.

Section 25 Saving of existing bars to service proceedings

(1) This article applies where immediately before commencement a person was by virtue of a provision mentioned in paragraph (3) not liable to be tried by court-martial in respect of an SDA offence.

(2) Where this article applies—

(a) the Court Martial may not try that person for that offence;

(b) the Service Civilian Court may not try that person for that offence;

(c) a charge against that person in respect of that offence may not be heard summarily by an officer.

(3) The provisions referred to in paragraph (1) are—

(a) section 134 of AA 1955 or AFA 1955 or section 129(2) of NDA 1957 (prohibition of trial by service court for offence already disposed of);

(b) section 18 of CMAA 1968 (conviction quashed by Appeal Court);

(c) a direction under section 52I(12) or (13) of NDA 1957 (direction that accused not liable to be tried for offence charged);

(d) a direction under section 81(2) of AA 1955 or AFA 1955 (direction prohibiting trial for desertion where confession made);

(e) an order under section 74 of NDA 1957 (order dispensing with trial of rating for desertion where confession made).

(4) Where immediately before commencement a person was by virtue of section 134 of AA 1955 or AFA 1955 not liable to be tried by court-martial in respect of an SDA offence by reason of having had an offence taken into consideration when being sentenced by a court-martial or a Standing Civilian Court, paragraph (2) above ceases to apply in respect of the SDA offence if after commencement that sentence is quashed.

Section 26 Saving of existing bars to civilian court proceedings

(1) This article applies where immediately before commencement a person was by virtue of a provision mentioned in paragraph (3) not liable to be tried by a civilian court in respect of an offence.

(2) Where this article applies, a civilian court may not try that person for that offence.

(3) The provisions referred to in paragraph (1) are—

(a) section 133 of AA 1955 or AFA 1955 (prohibition of trial by civilian court for offence already disposed of);

(b) section 129(1) of NDA 1957 (corresponding provision for persons subject to NDA 1957);

(c) section 18 of CMAA 1968 (conviction quashed by Appeal Court).

(4) Where immediately before commencement a person was by virtue of section 133 of AA 1955 or AFA 1955 not liable to be tried by a civilian court in respect of an offence (“offence C”) by reason of having had an offence taken into consideration when being sentenced by a court-martial or a Standing Civilian Court, paragraph (2) above ceases to apply in respect of offence C if after commencement that sentence is quashed.

Section 27 Application of AFA 2006 ss. 63 and 64

(1) In section 63 of AFA 2006 (service proceedings barring subsequent service proceedings)—

(a) any reference to a service offence includes an SDA offence; and

(b) subsection (3) has effect as if the cases mentioned in it included the following cases—

(i) where the person was convicted or acquitted of offence A by a court-martial convened under AA 1955 or AFA 1955 or a Standing Civilian Court and offence B is an offence of which the person could, on acquittal of offence A, have been convicted under section 98(2), (5) or (6) of AA 1955 or AFA 1955;

(ii) where the person was convicted or acquitted of offence A by a court-martial assembled under NDA 1957, or at a summary trial under that Act, and offence B is an offence of which the person could, on acquittal of offence A, have been convicted under section 68 of NDA 1957.

(2) In section 64 of AFA 2006 (service proceedings barring subsequent civilian proceedings)—

(a) the references in subsection (1) to an offence under section 42 of that Act include an SDA civil offence; and

(b) where section 64 applies by reason of the conviction, acquittal or taking into consideration of an SDA civil offence, the reference in subsection (3) to the offence under section 42 is to be read as a reference to the SDA civil offence.

(3) In sections 63 and 64 of that Act, and in this article, in relation to an SDA offence—

(a) references to conviction include—

(i) a finding being recorded under section 76B(7) of AA 1955 or AFA 1955 that a charge has been proved; and

(ii) a finding of guilt being recorded under section 52D(7) of NDA 1957;

(b) references to acquittal include—

(i) dismissal of a charge under section 76(5)(a) or 76B(2) of AA 1955 or AFA 1955 or section 52B(5)(a) of NDA 1957; and

(ii) referral of a charge back under section 76A(2) of AA 1955 or AFA 1955 or section 52C(2) of NDA 1957 with a direction to dismiss the charge.

(4) For the purposes of sections 63 and 64 of AFA 2006 a person shall be taken not to have had an SDA offence taken into consideration when being sentenced if the taking into consideration was annulled by the reviewing authority.

(5) Paragraph (4) does not affect section 65(3) of AFA 2006 in its application to SDA offences.

(6) In section 63(3)(c) of AFA 2006, the reference to section 161 includes a reference to article 77.

Section 28 Application of AFA 2006 s. 66

In section 66 of AFA 2006 (civilian proceedings barring subsequent service proceedings)—

(a) references to an offence under section 42 of that Act include an SDA civil offence;

(b) references to a non-criminal service offence include an SDA offence other than an SDA civil offence.

Section 29 “Service offence”

In Part 3 of AFA 2006 (powers of arrest, search and entry), any reference to a service offence (except the references in section 69) includes an SDA offence.

Section 30 Powers of arrest

(1) In section 68(3)(a) of AFA 2006 (provision supplementary to power of arrest) the reference to a civilian subject to service discipline is to be read, in relation to an SDA offence, as a reference to a civilian subject to the SDAs.

(2) A person may not be arrested under section 67 of AFA 2006 for an offence mentioned in article 2(4)(d) after the end of six months beginning with the end of the period specified in the community supervision order.

Section 31 Search on arrest

(1) In section 70 of AFA 2006 (search by service policeman on arrest)—

(a) in subsection (3), the reference to an arrest under section 67 or 69 includes an arrest under section 74 or 74A of AA 1955 or AFA 1955 or section 45 or 45A of NDA 1957;

(b) in subsection (4), the reference to a person arrested under section 67, 69, 110, 111 or 303 includes a person arrested under section 74, 74A or 75K of AA 1955 or AFA 1955 or section 45, 45A or 47L of NDA 1957.

(2) Section 71(4) of AFA 2006 (power to order or authorise search of arrested person for things subject to search) applies (as well as in the case mentioned in section 71(2)) in any case where—

(a) a person (“the SDA arrested person”) has been arrested under section 74 or 75K of AA 1955 or AFA 1955 or section 45 or 47L of NDA 1957 by a person other than a service policeman; and

(b) the SDA arrested person's commanding officer has reasonable grounds for believing as mentioned in section 71(2)(b) of AFA 2006.

(3) Where section 71(4) of AFA 2006 applies by virtue of paragraph (2) above, references in section 71(4), (5) and (6) to the arrested person are to be read as to the SDA arrested person, and section 71(8) does not apply.

(4) Where, immediately before commencement, an order or authorisation under section 10(5) of AFA 2001 has effect (order for or authorisation of search of arrested person), the order or authorisation has effect after commencement as if given under section 71(4) of AFA 2006.

(5) In section 73(2) of AFA 2006 (seizure and retention after search upon arrest) the reference to arrest under section 67 or 69 includes arrest under section 74 or 74A of AA 1955 or AFA 1955 or section 45 or 45A of NDA 1957.

(6) Where, immediately before commencement, a person was under section 10(10) of AFA 2001 retaining a seized item, he may continue to retain it after commencement if he has reasonable grounds for believing as mentioned in section 73(1) of AFA 2006.

(7) Where, immediately before commencement, a person was under section 10(11) of AFA 2001 retaining a seized item, he may continue to retain it after commencement if he has reasonable grounds for believing as mentioned in section 73(2) of AFA 2006 (as modified by this Part).

(8) In section 74 of AFA 2006 (power to make provision conferring power to search premises at which person arrested), the reference to section 67 includes a reference to section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957.

Section 32 Stop and search

(1) In sections 75(4)(b), 76(6)(b) and 77 of AFA 2006 (provisions relating to powers of stop and search)—

(a) any reference to an offence under section 42 of that Act includes an SDA civil offence;

(b) any reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

(2) Where, immediately before commencement, an order or authorisation under section 4(1) of AFA 2001 has effect (order for or authorisation of stop and search), the order or authorisation has effect after commencement as if given under section 76(1) of AFA 2006.

(3) In section 77(9) of AFA 2006 (definitions relating to stop and search), the reference to a person subject to service law is to be read, in relation to an SDA civil offence, as a reference to a person subject to military law, air-force law or NDA 1957.

Section 33 Powers of entry, search and seizure

(1) Where an application has been made under section 5(1) of AFA 2001 (application for warrant authorising entry and search of premises) and has not been granted, refused or withdrawn before commencement, the application has effect after commencement as if made under section 83(1)(a) of AFA 2006.

(2) Where, immediately before commencement, a warrant issued under section 5(1) of AFA 2001 has effect, the warrant has effect after commencement as if issued under section 83(1) of AFA 2006.

(3) Where, immediately before commencement, a person was under section 5(3) or 7(3) of AFA 2001 retaining a seized item, he may continue to retain it after commencement (subject, in the case of seizure under section 7(3) of AFA 2001, to section 89 of AFA 2006 as modified by this article).

(4) In section 84(2)(a) of AFA 2006 (authorisation of entry and search)—

(a) the reference to an offence under section 42 of that Act includes an SDA civil offence;

(b) the reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

(5) Where, immediately before commencement, an authorisation under section 7(1) of AFA 2001 has effect (authorisation of entry and search), the authorisation has effect after commencement—

(a) if given to a service policeman, as if given under section 87(1) of AFA 2006;

(b) otherwise, as if given under section 88(1) of that Act.

(6) In section 89 of AFA 2006 (review by judge advocate of certain searches), the reference to a search under section 87 or 88 of that Act includes a search under section 7 of AFA 2001 as respects which no request for review has been made under section 8 of that Act.

(7) Where a review has been requested under section 8 of AFA 2001 and the review has not been completed before commencement, the request has effect after commencement as if made under section 89(1) of AFA 2006.

(8) An authorisation under section 9(7) of AFA 2001 (entry and search for the purpose of arrest etc) of the exercise of the powers conferred by section 9(1)(a) of that Act on a service policeman has effect after commencement as if given under section 91(1) of AFA 2006.

(9) An authorisation under section 9(7) of AFA 2001 of the exercise of the powers conferred by section 9(1)(b) of that Act on a service policeman has effect after commencement as if given under section 91(5) of AFA 2006.

(10) In section 92 of AFA 2006 (power to make provision conferring powers of entry and search after arrest), the reference to section 67 includes a reference to section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957.

(11) In section 93 of AFA 2006 (power to make provision conferring power of seizure etc), the reference to any power of retention conferred by or under Part 3 of that Act includes any power of retention conferred by article 31(6) or (7) or paragraph (3).

(12) In section 94 of AFA 2006 (property in possession of service police or CO) any reference to seizure under Part 3 of that Act includes seizure under Part 2 of AFA 2001.

Section 34 “Service offence”

In Part 4 of AFA 2006 (custody), any reference to a service offence includes an SDA offence.

Section 35 Limitations on custody without charge of person arrested before commencement

(1) In section 98(1) of AFA 2006 (limitations on custody without charge), the reference to a person arrested under section 67 includes a person who immediately before commencement—

(a) was in military, air-force or naval custody having been arrested under section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957; and

(b) had not been charged with an offence, within the meaning given by section 75(4) of AA 1955 or AFA 1955 or section 47A(4) of NDA 1957.

(2) Section 119(5) of AA 1955 and AFA 1955 (provision corresponding to section 301(4) of AFA 2006) apply for the purposes of section 98 of AFA 2006.

(3) Section 88(2) of NDA 1957 (provision corresponding to section 301(4) of AFA 2006) applies for the purposes of section 98 of AFA 2006, but as if—

(a) the reference to civil custody were omitted; and

(b) in the definition of “the appropriate rules” in section 88(3) of NDA 1957, paragraph (c) were omitted.

Section 36 Authorisation by CO of custody without charge

(1) In section 99 of AFA 2006 (authorisation by CO of custody without charge)—

(a) in subsection (1) (duty to report to CO arrest and any grounds for keeping in custody), the reference to the case where a person is arrested under section 67 includes the case where—

(i) before commencement a person was arrested under section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957; and

(ii) immediately before commencement, the requirement imposed by section 75A(1) of AA 1955 or AFA 1955 or section 47B(1) of NDA 1957 had not been complied with in relation to that arrest;

(b) in subsection (3), the reference to a report under subsection (1) includes a report under section 75A(1) of AA 1955 or AFA 1955 or section 47B(1) of NDA 1957 as respects which no determination under section 75A(3) of AA 1955 or AFA 1955 or section 47B(3) of NDA 1957 had been made before commencement.

(2) Where, immediately before commencement, an authorisation under section 75A(4) of AA 1955 or AFA 1955 or section 47B(4) of NDA 1957 (authorisation by CO of custody without charge) has effect—

(a) the authorisation is not affected by the coming into force of the repeal of sections 75A(4) and 47B(4) (or by section 98(1) of AFA 2006);

(b) for the purposes of section 100(1) of AFA 2006, the person kept in service custody under the authorisation is to be taken to be kept in service custody in accordance with section 99 of that Act; and

(c) for the purposes of section 100(3), (4) and (6) of that Act and section 99(7)(d) of that Act the authorisation is to be taken to have been given under section 99(4) of that Act.

(3) Where, immediately before commencement, a person is in service custody by virtue of section 75B(4)(b) of AA 1955 or AFA 1955 or section 47C(4)(b) of NDA 1957 following the postponement of a review of his being kept in custody, section 100(6) of AFA 2006 applies as if—

(a) the review had been postponed under section 100(3) or (4); and

(b) the requirement in section 100(6)(a) were to carry out the review as soon as practicable.

Section 37 Extension by judge advocate of custody without charge

(1) In section 101(1) of AFA 2006 (power to apply to judge advocate for extension of custody without charge), the reference to a person arrested under section 67 includes a person who immediately before commencement—

(a) was in military, air-force or naval custody having been arrested under section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957; and

(b) had not been charged with an offence, within the meaning given by section 75(4) of AA 1955 or AFA 1955 or section 47A(4) of NDA 1957.

(2) Where, immediately before commencement, an order under section 75C(1) of AA 1955 or AFA 1955 or section 47D(1) of NDA 1957 (extension of custody without charge) has effect, the order—

(a) is not affected by the coming into force of the repeal of sections 75C(1) and 47D(1); and

(b) has effect after commencement as if the custody in which it authorised the person to whom it relates to be kept were service custody.

(3) Paragraph (4) applies where, immediately before commencement—

(a) an application has been made under section 75C(1) of AA 1955 or AFA 1955 or section 47D(1) of NDA 1957; and

(b) the hearing stands adjourned under section 75C(3) or (8)(b) of AA 1955 or AFA 1955 or section 47D(3) or (8)(b) of NDA 1957.

(4) The application has effect after commencement as an application under section 101(1) of AFA 2006.

Section 38 Persons arrested while in custody

(1) This article applies where before commencement a person, while kept in military, air-force or naval custody without being charged with an offence (within the meaning given by section 75(4) of AA 1955 or AFA 1955 or 47A(4) of NDA 1957), was arrested under section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957 for another offence.

(2) Paragraph (3) applies if, immediately before commencement, the requirement imposed by section 75A(1) of AA 1955 or AFA 1955 or section 47B(1) of NDA 1957 had not been complied with both in relation to the arrest for that other offence and the original arrest (and accordingly the duty in section 99(1) of AFA 2006 as modified by this Part applies).

(3) Where this paragraph applies, the reference in section 99(2)(a) of AFA 2006 to a service offence for which the person is under arrest includes the offence for which the person was originally arrested.

(4) Where the duty in section 99(3) of AFA 2006 (as modified by this Part) arises, the reference in section 99(4)(a) to a service offence for which the person is under arrest includes the offence for which the person was originally arrested.

(5) In section 99(6) of AFA 2006 the reference to the arrest is to be read as to the arrest for the offence for which the person was originally arrested.

(6) If an application is made under section 101 of AFA 2006 (as modified by this Part) in respect of the person, the reference in section 101(4) to the arrest is to be read as to the arrest for the offence for which the person was originally arrested.

(7) Any reference in section 102(1) to (7) of AFA 2006 to the arrest is to be read as to the arrest for the offence for which the person was originally arrested.

Section 39 Custody without charge: other cases

(1) This article applies where immediately before commencement a person—

(a) was in military, air-force or naval custody having been delivered into that custody under—

(i) section 187(2) or (3), 188(2) or 190A(3) of AA 1955 or AFA 1955;

(ii) section 103(3), 108(2), 109(1) or (3) of NDA 1957; or

(iii) paragraph 4(2) or (3), 5(3) or 6(2) of Schedule 2 to RFA 1996; and

(b) had not been charged with an offence, within the meaning given by section 75(4) of AA 1955 or AFA 1955 or section 47A(4) of NDA 1957.

(2) Sections 98 to 102 of AFA 2006 (as modified by this Part) shall apply as if the person had been arrested under section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957 at the time he was delivered into military, air-force or naval custody.

Section 40 Custody after charge

(1) In sections 105(1), (4), (5) and (7) and 106(3) of AFA 2006 (custody after charge), references to a person's being “charged” with an offence include a person's being informed in accordance with regulations of the Defence Council that a charge is to be reported to the person's commanding officer under section 76(1) of AA 1955 or AFA 1955 or section 52B(1) of NDA 1957.

(2) Where, immediately before commencement, an order under section 75F(2) of AA 1955 or AFA 1955 or section 47G(2) of NDA 1957 (order authorising custody after charge) has effect, the order has effect after commencement—

(a) as if made under section 105(2) of AFA 2006;

(b) as if the custody in which it authorised the accused to be kept were service custody; and

(c) in a case where the period of custody authorised by the order was so authorised by virtue of section 75G(7) of AA 1955 or AFA 1955 or section 47H(7) of NDA 1957, as if that period had been authorised by virtue of section 108(7) of AFA 2006.

(3) In section 105(5) of AFA 2006 (reasons to be given for not keeping certain persons in custody), in paragraph (a)—

(a) the reference to an offence under section 42 of that Act includes an SDA civil offence;

(b) the reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence; and

(c) the reference to an offence under section 1 of the Sexual Offences Act 2003 includes an offence under section 1 of the Sexual Offences Act 1956 .

(4) In section 105(7) of AFA 2006 (disapplication of section 105(1)), the reference to an order under section 105(2) includes an order under section 75F(2) of AA 1955 or AFA 1955 or section 47G(2) of NDA 1957.

(5) Where, immediately before commencement, a requirement under section 75J(2)(b) of AA 1955 or AFA 1955 or section 47K(2)(b) of NDA 1957 has effect (requirement to secure accused's attendance at hearing), the requirement has effect after commencement as if imposed under section 107(3)(a) of AFA 2006.

(6) Where, immediately before commencement, an application under section 75J(2A) of AA 1955 or AFA 1955 or section 47K(2A) of NDA 1957 (variation of requirement) has been made but not granted, refused or withdrawn, the application has effect after commencement as an application under section 107(4) of AFA 2006.

(7) Where, immediately before commencement, a request under section 75G(2)(b) of AA 1955 or AFA 1955 or section 47H(2)(b) of NDA 1957 (request for review) has been made but not complied with, the request has effect after commencement as a request under section 108(2)(b) of AFA 2006.

(8) Where before commencement a review in respect of a person's being kept in custody was carried out under section 75G(1) of AA 1955 or AFA 1955 or section 47H(1) of NDA 1957, any subsequent review under section 108(1) of AFA 2006 is to be treated for the purposes of section 108(5) and (6) of AFA 2006 as a subsequent review and not a first review.

(9) In section 109(1) of AFA 2006 (custody during court proceedings), the reference to a review under section 108(1) which takes place between arraignment before the Court Martial or the Service Civilian Court and the conclusion of proceedings before the court includes a review which takes place—

(a) between the arraignment of the accused under section 91A of AA 1955 or AFA 1955 or section 58A of NDA 1957 and the conclusion of proceedings before the Court Martial; or

(b) between the arraignment of the accused before a Standing Civilian Court and the conclusion of proceedings before the Service Civilian Court.

Section 41 Arrest after charge

(1) In section 110(1) of AFA 2006 (power to order arrest after charge), the reference to a person who has been “charged” with an offence includes a person who has been informed in accordance with regulations of the Defence Council that a charge is to be reported to the person's commanding officer under section 76(1) of AA 1955 or AFA 1955 or section 52B(1) of NDA 1957.

(2) Where, immediately before commencement, an order under section 75K(1) of AA 1955 or AFA 1955 or section 47L(1) of NDA 1957 (arrest after charge) has effect, the order has effect after commencement as if given under section 110(1) of AFA 2006.

(3) In section 110(4) of AFA 2006 (review), the reference to a person arrested under subsection (1) includes a person who immediately before commencement—

(a) was in service custody having been arrested under section 75K(1) of AA 1955 or AFA 1955 or section 47L(1) of NDA 1957; and

(b) had not been brought before a judicial officer under section 75K(7)(b) of AA 1955 or AFA 1955 or section 47L(7)(b) of NDA 1957.

(4) In section 111(1)(a) of AFA 2006 (arrest at direction of court), the reference to arraignment before a court mentioned there includes arraignment—

(a) under section 91A(2) of AA 1955 or AFA 1955 or section 58A(2) of NDA 1957; or

(b) before a Standing Civilian Court.

(5) Where, immediately before commencement, a direction under section 75K(3) of AA 1955 or AFA 1955 or section 47L(3) of NDA 1957 (arrest at direction of court) has effect, the direction has effect after commencement as if given under section 111(1) of AFA 2006.

(6) In section 111(4) of AFA 2006 (review), the reference to a person arrested under section 111 includes a person who immediately before commencement—

(a) was in service custody having been arrested (other than before a judicial officer or judge advocate) under section 75K(3) of AA 1955 or AFA 1955 or section 47L(3) of NDA 1957; and

(b) had not been brought before a judicial officer or judge advocate under section 75K(8)(b) of AA 1955 or AFA 1955 or section 47L(8)(b) of NDA 1957.

Section 42 “Service offence”, “Schedule 2 offence”

(1) In Part 5 of AFA 2006 (investigation, charging and mode of trial), any reference to a service offence includes an SDA offence.

(2) Paragraph (1) does not apply in relation to section 113(4) of that Act (definition of “Schedule 2 offence”); but in that Part “ Schedule 2 offence ” includes the following SDA offences—

(a) an offence under section 24 of AA 1955 or AFA 1955 or section 2 of NDA 1957 (misconduct in action);

(b) an offence under subsection (1)(a), (b), (c), (d) or (f) of section 25 of AA 1955 or AFA 1955 or of section 3 of NDA 1957 (assisting the enemy);

(c) an offence under section 26(1) of AA 1955 or AFA 1955 or section 4(1) of NDA 1957 (obstructing operations);

(d) an offence under section 30, 31 or 32 of AA 1955 or AFA 1955 or section 5, 9 or 10 of NDA 1957 (looting, munity, failure to suppress mutiny);

(e) an offence under section 37 of AA 1955 or AFA 1955 or section 16 of NDA 1957 (desertion) where the accused intends to avoid a period of active service within the meaning of section 8 of AFA 2006;

(f) an offence under section 44A(1)(f) of AA 1955 or AFA 1955 or section 29A(1)(f) of NDA 1957 (causing sequestration etc of aircraft) where the offender acts wilfully or with wilful neglect;

(g) an offence under section 48A of AA 1955 or AFA 1955 or section 19 of NDA 1957 (loss or hazarding of ship);

(h) an offence under section 49 of AA 1955 or AFA 1955 or section 20 of NDA 1957 (dangerous flying etc) where the offender acts wilfully or with wilful neglect;

(i) an offence under section 68 of AA 1955 or AFA 1955 or section 40 of NDA 1957 of attempting to commit an offence within any of sub-paragraphs (a) to (h) above;

(j) an SDA civil offence as respects which the corresponding civil offence is an offence mentioned in paragraph (3) below.

(3) The offences referred to in paragraph (2)(j) are—

(a) an offence within any sub-paragraph of paragraph 12 of Schedule 2 to AFA 2006;

(b) an offence under any of sections 1 to 7, 9 to 11, 16, 17, 19 to 24, 26 to 29 and 32 of the Sexual Offences Act 1956 ;

(c) an offence under section 128 of the Mental Health Act 1959 ;

(d) an offence under section 1 of the Indecency with Children Act 1960 ;

(e) an offence under section 4 or 5 of the Sexual Offences Act 1967 ;

(f) an offence under section 1 of the Criminal Attempts Act 1981 , or at common law, of attempting to commit an offence within any of sub-paragraphs (a) to (e) above;

(g) an offence under section 1 of the Criminal Law Act 1977 , or at common law, of conspiracy to commit an offence within any of sub-paragraphs (a) to (e) above;

(h) an offence at common law of incitement to commit an offence within any of sub-paragraphs (a) to (e) above;

(i) an offence under Part 2 of the Serious Crime Act 2007 where the offence (or one of the offences) which the offender intended or believed would be committed is an offence within sub-paragraph (a) above.

Section 43 Duties and powers of commanding officers in relation to allegations etc

(1) The duty in section 113(1) of AFA 2006 (CO to ensure service police aware of possibility serious offence committed) applies where at commencement an officer is aware of an allegation or circumstances within section 113(2).

(2) The duty in section 114(1) of AFA 2006 (CO to ensure service police aware of certain circumstances) applies where an officer of a description prescribed for the purposes of section 114 is, at commencement, aware of circumstances of a description so prescribed.

(3) Where—

(a) at commencement, an officer is aware of an allegation or circumstances within section 115(2), and

(b) section 115(1)(b) applies,

the duty in section 115(4) of AFA 2006 (duty of CO with respect to investigation of service offences) applies; but this is subject to section 115(5).

(4) In section 119(2) of AFA 2006 (circumstances in which, subject to section 119(3), a CO has initial powers in respect of a case), the reference to the commanding officer's becoming aware of an allegation such as is mentioned there includes the commanding officer's being aware at commencement of such an allegation.

Section 44 Charges preferred by prosecuting authority: allocation for Court Martial trial

(1) A charge within paragraph (3) or (4) is to be regarded for the purposes of Part 5 of AFA 2006 as allocated for Court Martial trial.

(2) Paragraph (1) has effect subject to any provision of that Part under which, at any time after commencement, the charge ceases to be allocated for Court Martial trial.

(3) A charge is within this paragraph if—

(a) it was preferred or substituted by the prosecuting authority under section 83B(4) or (8) of AA 1955 or AFA 1955 or section 52I(4) or (7) of NDA 1957; and

(b) it is current at commencement.

(4) A charge is within this paragraph if—

(a) the condition in sub-paragraph (a) of article 52(3) (preferment or substitution of charge under the Standing Civilian Courts Order 1997 ) is satisfied in relation to it;

(b) the condition in any of sub-paragraphs (b) to (d) of that paragraph (circumstances in which charge to be tried by Standing Civilian Court rather than court-martial) is not satisfied in relation to it; and

(c) it is current at commencement.

(5) For the purposes of this article a charge is “current at commencement” if, at commencement—

(a) the accused has not already been convicted or acquitted by court-martial of the offence charged;

(b) the charge has not been otherwise disposed of;

(c) proceedings on it have not been stayed;

(d) the case has not been referred to the accused's commanding officer, or the appropriate superior authority, under section 83B(2) of AA 1955 or AFA 1955 or section 52I(2) of NDA 1957;

(e) proceedings on the charge have not been discontinued under section 83B(8) of AA 1955 or AFA 1955 or section 52I(7) of NDA 1957, and no other charge has been substituted for it;

(f) the charge has not been tried by court-martial without a finding on it being recorded because it was charged as an alternative to another charge which was found proved; and

(g) the time limit for court-martial trial has not expired.

(6) For the purposes of paragraph (5)(b) a charge has been “otherwise disposed of” if, under either of the following, the person who was charged could not be tried by the Court Martial in respect of the offence to which the charge related—

(a) article 25 of this Order (double jeopardy);

(b) Chapter 3 of Part 2 of AFA 2006 (double jeopardy) as modified by this Order.

Section 45 Effect of time limits for court-martial trial

(1) For the purposes of article 44, the time limit for court-martial trial has expired in relation to a charge if, immediately before commencement—

(a) trial of the charge was prohibited by section 132 of AA 1955 or AFA 1955 or section 52 of NDA 1957 (limitation of time for trial); and

(b) the prohibition could not have been lifted by the Attorney General's giving consent under section 132(3A) of AA 1955 or AFA 1955 or section 52(3) of NDA 1957.

(2) Paragraph (3) applies where—

(a) by virtue of article 44 a charge is allocated for Court Martial trial for the purposes of Part 5 of AFA 2006;

(b) immediately before commencement, trial of the charge was prohibited as mentioned in paragraph (1)(a); and

(c) the prohibition could have been lifted as mentioned in paragraph (1)(b).

(3) Where this paragraph applies—

(a) the Court Martial may not without the Attorney General's consent try the charge (or any charge substituted for it, or brought in addition to it, under section 125(2)(b) or (c) of AFA 2006); and

(b) the Director of Service Prosecutions may not refer the charge to the accused's commanding officer.

Section 46 Charges reported to commanding officer: allocation for summary hearing

(1) A charge within paragraph (3) is to be regarded for the purposes of Part 5 of AFA 2006 as allocated for summary hearing.

(2) Paragraph (1) has effect subject to any provision of that Part under which, at any time after commencement, the charge ceases to be allocated for summary hearing.

(3) A charge is within this paragraph if—

(a) it is a charge which—

(i) was reported to an officer under section 76(1) of AA 1955 or AFA 1955 or section 52B(1) of NDA 1957; or

(ii) was required to be dealt with as if it had been so reported (by reason of section 83BB(3) or (4) of AA 1955 or AFA 1955 or section 52II(3) or (4) of NDA 1957); or

(iii) was substituted under section 76(3) or 76B(3) of AA 1955 or AFA 1955 or section 52B(3) or 52D(4B) of NDA 1957;

(b) it is current at commencement; and

(c) it is not an excluded charge within the meaning of article 47.

(4) For the purposes of this article a charge is “current at commencement” if, at commencement—

(a) the charge has not been summarily dealt with or tried;

(b) the charge has not been dismissed under section 76(5)(a) of AA 1955 or AFA 1955 or section 52B(5)(a) of NDA 1957;

(c) further proceedings with respect to it have not been stayed under section 76(4) of AA 1955 or AFA 1955 or section 52B(4) of NDA 1957;

(d) no direction for dismissal or stay of further proceedings has been made in relation to it under section 76A(2) of AA 1955 or AFA 1955 or section 52C(2) of NDA 1957;

(e) no other charge has been substituted for it under section 76(3) or 76B(3) of AA 1955 or AFA 1955 or section 52B(3) or 52D(4B) of NDA 1957;

(f) the time limit for court-martial trial has not expired (see article 48); and

(g) if the case to which the charge relates has been referred to the prosecuting authority, the charge is not prevented by paragraph (5) or (6) from being current.

(5) The charge referred to in paragraph (4)(g) (“ the original charge ”) is prevented by this paragraph from being current if the prosecuting authority has preferred a charge (“the PA's charge”) and—

(a) has not subsequently referred the case to the accused's commanding officer or the appropriate superior authority under section 83B(2) or 83BB(2A) of AA 1955 or AFA 1955 or section 52I(2) or 52II(2A) of NDA 1957; and

(b) has not (either before or after preferring the PA's charge) referred a part of the case to which the original charge relates to the accused's commanding officer under section 83BB(2A) of AA 1955 or AFA 1955 or section 52II(2A) of NDA 1957.

(6) The charge referred to in paragraph (4)(g) is prevented by this paragraph from being current if the prosecuting authority has informed the accused's commanding officer that the prosecuting authority has decided—

(a) not to prefer any charge; and

(b) (if there was no election for court-martial trial) not to refer the case, or any part of it to which the charge relates, back to the accused's commanding officer under section 83BB(2A) of AA 1955 or AFA 1955 or section 52II(2A) of NDA 1957.

(7) For the purposes of paragraph (4)(a) the charge has been summarily dealt with or tried if—

(a) it has been dismissed within the meaning of section 76B(2) of AA 1955 or AFA 1955, or the accused has been acquitted of it under section 52D(6) of NDA 1957; or

(b) a finding that the charge has been proved has been recorded under section 76B(7) of AA 1955 or AFA 1955, or a finding of guilt in respect of it has been recorded under section 52D(7) of NDA 1957.

Section 47 Exceptions to allocation for summary hearing

(1) For the purposes of article 46(3)(c) and paragraph (2) below an “excluded charge” is any of the following—

(a) a charge which is not capable of being heard summarily (within the meaning given by section 52 of AFA 2006 as modified by articles 14 and 15); but this is subject to paragraph (3) below;

(b) a charge where—

(i) the case to which the charge relates was referred to the prosecuting authority by higher authority under section 76A(1) of AA 1955 or AFA 1955 or section 52C(1) of NDA 1957; and

(ii) there has been no referral back of the case, or of a part of the case to which the charge relates, under section 83B(2) or 83BB(2A) of AA 1955 or AFA 1955 or section 52I(2) or 52II(2A) of NDA 1957;

(c) a charge as respects which the accused—

(i) elected court-martial trial; and

(ii) has not withdrawn that election with leave;

(d) a charge where—

(i) the charge has been referred to higher authority under section 76(5)(b) or 76B(4) of AA 1955 or AFA 1955 or section 52B(5)(b) or 52D(5) of NDA 1957;

(ii) it has not been referred back under section 76A(3) or (4) of AA 1955 or AFA 1955 or section 52C(3) or (3A)(a) or (b) of NDA 1957 to be dealt with or tried summarily; and

(iii) the case to which the charge relates has not been referred to the prosecuting authority;

(e) a charge against a civilian.

(2) An excluded charge, if falling within article 46(3)(a) and (b), is to be regarded for the purposes of Part 5 of AFA 2006 as allocated for Court Martial trial (subject to any provision of that Part under which, at any time after commencement, the charge ceases to be allocated for Court Martial trial).

(3) A charge which is not capable of being heard summarily is not an excluded charge by reason of paragraph (1)(a) if the case, or a part of the case to which the charge relates, was referred back under section 83B(2) or 83BB(2A) of AA 1955 or AFA 1955 or section 52I(2) or 52II(2A) of NDA 1957.

(4) For the purposes of paragraph (1)(e) a charge is “against a civilian” if, when the offence was committed or at any time since, the accused was a person who was not—

(a) subject to service law (including military law, air-force law or NDA 1957);

(b) a member of a volunteer reserve force; or

(c) a member of an ex-regular reserve force who is subject to an additional duties commitment.

Section 48 Effect of time limits for trial in relation to summary hearing

(1) For the purposes of article 46(4), the time limit for court-martial trial has expired in relation to a charge (“the CO's charge”) if—

(a) a charge has been preferred by the prosecuting authority in relation to the case to which the CO's charge relates, and the time limit for court-martial trial of the charge so preferred has expired (within the meaning given by article 45(1)); or

(b) no charge has been so preferred, but if a charge in the same terms as the CO's charge had been preferred by the prosecuting authority (and no trial of it had begun by commencement), that time limit would have expired.

(2) Paragraph (3) applies where a charge is allocated for summary hearing for the purposes of Part 5 of AFA 2006—

(a) by virtue of article 46; or

(b) by virtue of having been referred to the accused's commanding officer under section 125(2)(e) of AFA 2006 following initial allocation of the charge (or of a charge for which it was substituted or to which it was added) for Court Martial trial under article 44 or 47(2).

(3) If the time limit for summary dealing or trial expired before commencement, the accused's commanding officer may not hear the charge (and section 124(2) of AFA 2006 has effect subject to this).

(4) For the purposes of paragraph (3), the time limit for summary dealing or trial expired before commencement if, immediately before commencement, summary dealing with or summary trial of the charge was prohibited by section 132 of AA 1955 or AFA 1955 or section 52 of NDA 1957.

(5) If the charge is one which would not at any time have been capable of being dealt with summarily or tried summarily under AA 1955, AFA 1955 or NDA 1957, that is to be ignored for the purposes of paragraph (4).

(6) In paragraphs (4) and (5) “the charge”, in a case where a charge has been substituted for or added to a charge initially allocated for Court Martial trial, means the charge initially allocated for Court Martial trial.

(7) Paragraph (3) does not apply if—

(a) the offence charged is such that under section 132(3A) of AA 1955 or AFA 1955 or section 52(3) of NDA 1957 the Attorney General could have consented to proceedings in respect of it; and

(b) the Attorney General consents to the charge being heard by the commanding officer.

(8) Where under this article a commanding officer is prevented from hearing a charge, he may not hear any charge substituted for that charge.

Section 49 Charges allocated for summary hearing: restriction on CO's powers in certain cases

(1) Where a charge within article 46(3)(a) is (for the purposes of Part 5 of AFA 2006) allocated for summary hearing and paragraph (2) applies, the commanding officer of the accused may not hear the charge unless—

(a) the case, or a part of the case to which the charge relates, was referred back by the prosecuting authority under section 83B(2) or 83BB(2A) of AA 1955 or AFA 1955 or section 52I(2) or 52II(2A) of NDA 1957; or

(b) the case to which the charge relates has been referred to the commanding officer by a service policeman under section 116(3) of AFA 2006.

(2) This paragraph applies where—

(a) the allegation or circumstances which gave rise to the charge (“the circumstances”) are being or have been investigated by a service police force or the tri-service serious crime unit ;

(b) the circumstances 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; or

(c) the circumstances give or have given rise to the duty in section 113(1) or 114(1) of AFA 2006 (duties to inform service police).

(3) Where under this article a commanding officer is prevented from hearing a charge, he may not hear any charge substituted for that charge.

Section 50 Deemed referrals under AFA 2006 s. 116(3)

(1) This article applies where—

(a) before commencement a service policeman reported to the commanding officer of a person—

(i) that there was sufficient evidence to charge the person with an offence (“the relevant offence”), but not sufficient evidence to charge the person with an offence mentioned in article 42(2); and

(ii) that the service policeman was not aware of any circumstances of a description prescribed for the purposes of section 116(2)(b) of AFA 2006; and

(b) since that report, no service policeman has reported to the person's commanding officer that there is sufficient evidence to charge the person with an offence mentioned in article 42(2) or that the service policeman is aware of such circumstances.

(2) Where this article applies, the case relating to the relevant offence is to be regarded for the purposes of section 119(4) of AFA 2006 and article 49(1)(b) as having been referred to the commanding officer by a service policeman under section 116(3) of AFA 2006.

(3) References in this article to there being sufficient evidence to charge a person with an offence have the meaning given by section 116(5) of AFA 2006.