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

Type Statutory-Instrument

Publication 2009-04-23

Last updated 2024-04-17

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(1) In section 285(1) of AFA 2006 (appeal to the Court Martial), the reference to a person convicted by the Service Civilian Court includes a person convicted by a Standing Civilian Court.

(2) Where such a person brought an appeal under paragraph 18 of Schedule 3 to AFA 1976 and the appeal has not been determined or abandoned, the appeal is to be regarded as an appeal under section 285 of AFA 2006.

(3) Any appeal by such a person must be brought within 40 days of the court's sentence, and section 285(3) and (4) of AFA 2006 do not apply in relation to such an appeal.

(4) On an appeal by such a person, the Court Martial may only pass a sentence that the Service Civilian Court could have passed if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant on the date on which the Standing Civilian Court convicted him; and section 286(6) of AFA 2006 does not apply.

(5) On an appeal against a fine imposed by a Standing Civilian Court under paragraph 4(10) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 (fine for offence of failure to comply with requirements of a community supervision order), the Court Martial—

(a) may substitute any punishment in rows 2 to 7 of the Table in Part 1 of Schedule 3 to AFA 2006; but

(b) may not deal with the offender for the offence for which the community supervision order was made.

(6) In section 268(5) of AFA 2006 (appeal against order that fine or compensation be paid by service parent or guardian) references to an order under section 268 include an order made by a Standing Civilian Court under paragraph 13 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

(7) No appeal shall lie from—

(a) an order by a Standing Civilian Court under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 requiring an offender's service parent or guardian to enter into a recognisance; or

(b) a declaration by a Standing Civilian Court that such a recognisance is forfeited (in whole or in part).

(8) In relation to an appeal by a person convicted by a Standing Civilian Court, references in section 287 of AFA 2006 (findings made and sentences passed by Court Martial on appeal from SCC) to the Service Civilian Court are to be read as references to the Standing Civilian Court.

PART 17 — SERVICE AND EFFECT OF SENTENCES IN RESPECT OF SDA OFFENCES

CHAPTER 1 — General

General saving for SDA sentences

135

A punishment awarded before commencement under an enactment repealed by AFA 2006 is not affected by the coming into force of the repeal of the enactment under which it was awarded, or by article 6.

CHAPTER 2 — Custodial sentences and detention

Committal orders under NDA 1957: custodial sentences

136

(1) This article applies where—

(a) a person has been sentenced under NDA 1957 to an SDA custodial sentence; and

(b) at commencement, no committal order has been issued under section 81(3) of that Act in respect of the sentence.

(2) Subject to paragraph (3), the sentence shall be sufficient warrant for sending the person to such place as the Commandant of the Military Corrective Training Centre may direct, and detaining him in service custody until he reaches that place; and, accordingly, no committal order shall be required.

(3) Where the sentence has been suspended under section 90 of NDA 1957, and no order has been made under section 91(1) of that Act in respect of it—

(a) paragraph (2) does not apply unless an order is made under article 94 in respect of the sentence; but

(b) any such order shall have the effect mentioned in paragraph (2).

Committal orders under NDA 1957: sentences of service detention

137

(1) Paragraphs (2) to (4) apply where—

(a) a person has before commencement been sentenced to detention under section 43(1)(e) of NDA 1957; and

(b) at commencement, no committal order has been issued under section 81(3) of that Act in respect of the sentence.

(2) Subject to paragraphs (3) and (4), the sentence shall be sufficient warrant for sending the person in service custody to the Military Corrective Training Centre; and, accordingly, no committal order shall be required.

(3) Where the sentence has been suspended under section 90 of NDA 1957, and at commencement no order has been made under section 91(1) or 91B(1) of that Act in respect of it—

(a) paragraph (2) does not apply unless an order is made under section 91B(1) of that Act (by virtue of article 55 or 62), or section 191(3) or 193(3) of AFA 2006 (by virtue of any of articles 95 to 97), in respect of the sentence; but

(b) any such order shall have the effect mentioned in paragraph (2).

(4) Where the sentence was passed by an officer and, immediately before commencement, was suspended by virtue of section 85A(4) of NDA 1957, paragraph (2) applies only when the sentence takes effect by virtue of section 290 or 291 of AFA 2006 (as modified by article 138 or 140).

(5) Where—

(a) a person is sentenced to detention under section 43(1)(e) of NDA 1957 by virtue of article 55 (award of SDA punishment for offence found proved before commencement), and

(b) the sentence is not suspended under section 90 of NDA 1957,

the sentence shall be sufficient warrant for sending the person in service custody to the Military Corrective Training Centre; but this is subject to sections 290 and 291 of AFA 2006 (as modified by article 142).

(6) Where—

(a) a person is sentenced to detention under section 43(1)(e) of NDA 1957 by virtue of article 55,

(b) the sentence is suspended under section 90 of NDA 1957, and

(c) an order under section 191(3) or 193(3) of AFA 2006 is made (by virtue of any of articles 95 to 97) in respect of the sentence,

the order shall be sufficient warrant for sending the person in service custody to the Military Corrective Training Centre; but, in the case of an order under section 193(3) of AFA 2006, this is subject to sections 290 to 292 of that Act (as modified by article 144).

Commencement of SDA sentence of service detention awarded by CO: sentence not running at commencement

138

(1) This article applies where—

(a) immediately before commencement, an SDA sentence of service detention awarded by an officer (or the remainder of such a sentence) was suspended by virtue of section 118ZA(3) or (4) of AA 1955 or AFA 1955 or section 85A(4) or (5) of NDA 1957 (commencement of sentence of detention awarded by CO); and

(b) either—

(i) the officer did not make an order under section 118A(2) of AA 1955 or AFA 1955 or section 86(2) of NDA 1957 that the sentence should run from the expiry of another sentence; or

(ii) the officer made such an order but the other sentence expired before commencement.

(2) If at commencement—

(a) the offender has made no election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957,

(b) the appeal period has not expired, and

section 290(3) of AFA 2006 applies as if the sentence were a sentence of service detention as respects which the offender made no election under section 290(2).

(3) If at commencement—

(a) the offender has made an election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957 but has withdrawn it,

(b) the appeal period has not expired, and

section 290(5) of AFA 2006 applies as if the sentence were a sentence of service detention as respects which the offender made an election under section 290(2) but withdrew the election under section 290(4).

(4) In paragraphs (2) and (3) “the appeal period” means the period mentioned in section 141(2) of AFA 2006 (as modified by article 63(2)) for the bringing of an appeal.

(5) If at commencement an appeal has been brought and has not been abandoned or determined, section 290(3) or (as the case may be) (5) of AFA 2006 applies (with the omission of paragraph (a)) as if—

(a) the sentence were a sentence of service detention;

(b) any election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957, or failure to make such an election, were an election under section 290(2) of AFA 2006 or (as the case may be) a failure to make such an election;

(c) any withdrawal of an election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957 were a withdrawal under section 290(4) of AFA 2006 of an election under section 290(2); and

(d) the appeal had been brought under section 141 of AFA 2006.

(6) If at commencement—

(a) the sentence has taken or resumed effect, and

(b) an appeal which was subsequently brought has not been abandoned or determined,

section 290(6) of AFA 2006 applies (with the omission of paragraph (a)) as if the sentence had taken or resumed effect under section 290(2), (3)(a) or (5)(a) of that Act and the appeal had been brought under section 141.

Commencement of SDA sentence of service detention awarded by CO: sentence running at commencement

139

(1) This article applies where—

(a) an SDA sentence of service detention was awarded by an officer before commencement; and

(b) immediately before commencement, the sentence was not suspended by virtue of section 118ZA(3) or (4) of AA 1955 or AFA 1955 or section 85A(4) or (5) of NDA 1957 (but had not expired).

(2) If the offender made an election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957—

(a) section 290(4) of AFA 2006 applies as if the sentence were a sentence of service detention as respects which the offender made an election under section 290(2);

(b) section 290(5) of that Act applies if the election is withdrawn within the appeal period; and

(i) the election is not withdrawn but an appeal is subsequently brought; or

(ii) the election is withdrawn during the appeal period, the remainder of the award resumes effect under section 290(5)(a) of that Act and an appeal is subsequently brought.

(3) In paragraph (2) “the appeal period” means the period mentioned in section 141(2) of AFA 2006 (as modified by article 63(2)) for the bringing of an appeal.

(4) If—

(a) the appeal period (within the meaning of section 118ZA of AA 1955 or AFA 1955 or section 85A of NDA 1957) has expired before commencement without an appeal being brought, and

(b) an appeal is subsequently brought,

section 290(6) of AFA 2006 applies as if the sentence were a sentence of service detention which took or resumed effect under section 290(3)(a) or (5)(a).

Commencement of consecutive SDA sentence of service detention awarded by CO before commencement

140

(1) This article applies where—

(a) before commencement, an officer awarded an SDA sentence of service detention (“the subsequent sentence”);

(b) the officer made an order under section 118A(2) of AA 1955 or AFA 1955 or section 86(2) of NDA 1957 that the subsequent sentence should begin to run from the expiry of a sentence of detention which the offender was already serving (“the initial sentence”); and

(2) Section 291(3) to (9) of AFA 2006 apply as if—

(a) both the initial sentence and the subsequent sentence were sentences of service detention awarded under section 132 of that Act;

(b) the order were a direction under section 189(3) of that Act that the subsequent sentence should take effect from the end of the initial sentence;

(c) any election made under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957, or failure to make such an election, were an election or (as the case may be) failure to make an election under section 291(2) of AFA 2006; and

(d) any withdrawal of an election under section 118ZA(3) of AA 1955 or AFA 1955 or section 85A(4) of NDA 1957, or failure to make such a withdrawal, were a withdrawal under section 291(3) of AFA 2006 or (as the case may be) a failure to make such a withdrawal.

Commencement of sentence of detention activated by CO under NDA 1957 before commencement

141

(1) Article 138 applies in relation to an SDA sentence of service detention as respects which an officer made an order under section 91B(1) of NDA 1957 before commencement as it applies in relation to an SDA sentence of service detention awarded by an officer, but with the following modifications—

(a) the references in article 138(1)(b) to an order under section 86(2) of that Act are to be read as to a direction under section 91B(6) of that Act;

(b) in section 290(3), (5) and (6) of AFA 2006 as applied by article 138, references to the award are to be read as to the SDA sentence of service detention to which the order relates;

(c) in relation to section 290(3) and (5) of AFA 2006 as applied by article 138, the reference in section 290(7) of that Act to an appeal is to an appeal against the order;

(d) in relation to section 290(3)(b), (5)(b) and (6)(b) of AFA 2006 as applied by article 138, in section 290(8) of that Act—

(i) the reference to the award is to be read as to the order; and

(ii) the reference to another punishment is to be read as to an order under section 193(3) of AFA 2006.

(2) Article 139 applies in relation to a sentence of detention as respects which an officer made an order under section 91B(1) of NDA 1957 before commencement as it applies in relation to an SDA sentence of service detention awarded by an officer, but with the following modifications—

(a) in section 290(5) and (6) of AFA 2006 as applied by article 139, references to the award are to be read as to the SDA sentence of service detention to which the order relates;

(b) in relation to section 290(4) and (5) of AFA 2006 as applied by article 139, the reference in section 290(7) of that Act to an appeal is to an appeal against the order;

(i) the reference to the award is to be read as to the order; and

(ii) the reference to another punishment is to be read as to an order under section 193(3) of AFA 2006.

(3) Article 140 applies in relation to an SDA sentence of service detention as respects which an officer made an order under section 91B(1) of NDA 1957 before commencement and gave a direction under section 91B(6) of that Act as it applies in relation to an SDA sentence of service detention as respects which an officer made an order under section 86(2) of that Act, but with the following modifications—

(a) the reference in article 140(1)(b) to an order under section 86(2) of that Act is to be read as to a direction under section 91B(6) of that Act;

(b) in section 291(4) to (7) of AFA 2006 as applied by article 140, references to the award are to be read as to the SDA sentence of service detention to which the order relates;

(c) in relation to section 291(5) and (6) of AFA 2006 as applied by article 140, the reference in section 291(8) of that Act to an appeal is to an appeal against the order;

(d) in relation to section 291(5)(b), (6)(b) and (7)(b) of AFA 2006 as applied by article 140, in section 291(9) of that Act—

(i) the reference to the award is to be read as to the order; and

(ii) the reference to another punishment is to be read as to an order under section 193(3) of AFA 2006.

(4) In this article, “the order” means the order under section 91B(1) of NDA 1957.

Commencement of SDA sentence of service detention awarded by CO after commencement

142

(1) Section 290 of AFA 2006 (commencement of term of service detention awarded by CO) applies where an officer—

(a) awards an SDA sentence of service detention by virtue of article 55 (award of SDA punishment for offence found proved before commencement);

(b) in the case of a sentence under NDA 1957, does not make an order under section 90(1) of that Act suspending the sentence; and

(c) does not order under section 118A(2) of AA 1955 or AFA 1955, or section 86(2) of NDA 1957, that the sentence shall begin to run from the expiry of another sentence.

(2) Section 291 of AFA 2006 (commencement of consecutive term of service detention awarded by CO) applies where an officer—

(a) awards an SDA sentence of service detention by virtue of article 55; and

(b) orders under section 118A(2) of AA 1955 or AFA 1955, or section 86(2) of NDA 1957, that the sentence shall begin to run from the expiry of another sentence.

(3) In section 291 of AFA 2006 as applied by paragraph (2)—

“the initial sentence” means the second sentence mentioned in paragraph (2)(b);

“the appeal period” means the period mentioned in section 141(2) of AFA 2006 for the bringing of an appeal against the award mentioned in paragraph (2)(a).

Commencement of sentence of detention activated by CO under NDA 1957 after commencement

143

(1) Section 292(2) of AFA 2006 (commencement of suspended sentence of service detention activated by CO) applies where an officer—

(a) makes an order under section 91B(1) of NDA 1957 by virtue of article 55 or 62; and

(b) does not direct under section 91B(6) of that Act that the sentence in respect of which the order is made shall begin to run from the end of another sentence.

(2) Section 292(3) of AFA 2006 (commencement of suspended sentence of service detention activated by CO and made consecutive to another sentence) applies, with the omission of paragraph (b), where an officer—

(a) makes an order under section 91B(1) of NDA 1957 by virtue of article 55 or 62; and

(b) directs under section 91B(6) of that Act that the sentence in respect of which the order is made shall begin to run from the end of another sentence.

(3) In section 292(2) and (3) of AFA 2006 as applied by this article—

(a) “the activation order” means the order under section 91B(1) of NDA 1957;

(b) references to the award of service detention to which the activation order relates are to the SDA sentence of service detention to which the order under section 91B(1) of NDA 1957 relates.

(4) In section 291(2) to (9) of AFA 2006 as modified by section 292(3) of that Act by virtue of paragraph (2) above, “the initial sentence” means the second sentence mentioned in paragraph (2)(b).

Commencement of SDA sentence of service detention activated by CO under AFA 2006

144

(1) This article applies where an officer makes an order under section 193(3) of AFA 2006 by virtue of article 97 (activation of suspended NDA 1957 sentence of service detention by CO).

(2) If the order does not provide that the suspended sentence shall take effect from the end of another sentence, section 290(2) to (8) of AFA 2006 apply as modified by section 292(2) of that Act (except paragraph (c) of that subsection) as if the sentence were a suspended sentence of service detention.

(3) In section 290(2) to (7) of AFA 2006 as applied by paragraph (2), any reference to “the award” (other than one to which section 292(2)(a) or (b) applies) is to the award of detention (under NDA 1957) to which the order relates.

(4) If the order provides that the suspended sentence shall take effect from the end of another sentence, section 291(2) to (9) of AFA 2006 apply as modified by section 292(3) of that Act (except paragraph (c) of that subsection), as if the sentence were a suspended sentence of service detention.

(5) In section 291(4) to (7) of AFA 2006 as applied by paragraph (4), any reference to “the award” is to the award of detention (under NDA 1957) to which the order relates.

Effect of custodial sentence or detention on rank or rate

145

The sentences to which section 294 of AFA 2006 (rank or rate of WOs and NCOs while in custody or detention) applies include—

(a) a custodial sentence passed in respect of an SDA offence;

(b) an SDA custodial sentence; and

Service of SDA sentence of service detention

146

(1) In section 296 of AFA 2006 (service of sentence of service detention), references to a sentence of service detention include an SDA sentence of service detention.

(2) In subsection (2)(b) of that section the reference to section 290 or 291 includes a reference to section 118ZA(3) or (4) of AA 1955 or AFA 1955 or section 85A(4) or (5) of NDA 1957.

Detention in service custody following passing of custodial sentence etc in respect of SDA offence

147

In section 297(1)(a) of AFA 2006 (detention in service custody following passing of custodial sentence etc), the reference to a custodial sentence passed in respect of a service offence includes—

(a) an SDA custodial sentence; and

(b) a custodial sentence passed in respect of an SDA offence.

Removal to England and Wales following passing of custodial sentence etc in respect of SDA offence

148

(1) In section 298(1)(a) of AFA 2006 (removal to England and Wales following passing of custodial sentence etc), the reference to a custodial sentence passed in respect of a service offence includes—

(a) an SDA custodial sentence; and

(b) a custodial sentence passed in respect of an SDA offence.

(2) Nothing in this article applies section 298 of AFA 2006 in relation to a person who, before commencement, was committed to the appropriate establishment in the United Kingdom.

Duty to receive and detain prisoners

149

In section 299 of AFA 2006 (duty to receive prisoners), the reference to rules under section 300 of that Act includes Imprisonment and Detention Rules within the meaning of section 122 of AA 1955.

Service custody etc rules

150

In section 300 of AFA 2006 (service custody etc rules)—

(a) references to a sentence of service detention include an SDA sentence of service detention;

(b) references to a relevant sentence include (as well as, by reason of paragraph (a), an SDA sentence of service detention)—

(i) an SDA custodial sentence; and

(ii) a custodial sentence passed in respect of an SDA offence;

(c) the reference in subsection (4) to a disciplinary offence created by the rules includes a disciplinary offence created by rules under section 122 of AA 1955.

Duration of sentences: persons unlawfully at large or on temporary release

151

(1) In section 301 of AFA 2006 (duration of sentences: persons unlawfully at large or on temporary release)—

(a) references to service detention include an SDA sentence of service detention;

(b) references to a custodial sentence passed in respect of a service offence include—

(i) an SDA custodial sentence; and

(ii) a custodial sentence passed in respect of an SDA offence.

(2) In subsection (3) of that section, the reference to rules under section 300 includes rules made under section 122 of AA 1955.

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

(4) Section 88(2) of NDA 1957 (provision corresponding to section 301(4) of AFA 2006) applies for the purposes of section 301 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.

Remission of certain sentences on passing of custodial sentence etc

152

(1) In section 302(1) of AFA 2006 (remission of certain sentences on passing of custodial sentence etc)—

(a) the reference to a “relevant sentence” includes—

(i) an SDA sentence of service detention; and

(ii) an SDA minor punishment; and

(b) the reference in paragraph (a) to a service offence includes an SDA offence.

(2) Where part of an SDA minor punishment was unserved immediately before commencement, that part is remitted on commencement if, between the award of that punishment and commencement, there has been passed on the offender (and not quashed)—

(a) an SDA custodial sentence; or

(b) a sentence of imprisonment, or a sentence that corresponds to a custodial sentence within the meaning of AFA 2006, passed by a civilian court in the British Islands.

(3) In this article “an SDA minor punishment” means a minor punishment under section 71(1)(l) or 76C(2)(e) of AA 1955 or AFA 1955 or section 43(1)(m) of NDA 1957.

Power of service policeman to arrest person unlawfully at large

153

(1) In section 303(1) of AFA 2006 (power of service policeman to arrest person sentenced to service detention who is unlawfully at large), the reference to service detention includes an SDA sentence of service detention.

(2) Section 119(5) of AA 1955 and AFA 1955 (provision corresponding to section 303(2) of AFA 2006) apply for the purposes of section 303(1) of AFA 2006.

(3) Section 88(2) of NDA 1957 (provision corresponding to section 303(2) of AFA 2006) applies for the purposes of section 303(1) 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.

Sentences passed by civilian courts

154

In section 304(1) of AFA 2006 (references to custodial sentence do not include sentence passed by civilian court), the reference to a service offence includes an SDA offence.

CHAPTER 3 — Financial penalties

Effect of appeal on SDA service compensation order, etc

155

(1) In section 176(1) of AFA 2006 (suspension of entitlement to payment of service compensation order), the reference to a service compensation order includes a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

(2) In section 176(3) of AFA 2006 (effect of appeal, etc, where service compensation order made in respect of offence taken into consideration), the reference to a service compensation order includes—

(a) stoppages under AA 1955, AFA 1955 or NDA 1957; and

(b) a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Review of stoppages and SDA compensation order, etc

156

In section 177 of AFA 2006 (review of service compensation order), references to a service compensation order include—

(a) stoppages under AA 1955, AFA 1955 or NDA 1957; and

(b) a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Power to allow payment of fine or stoppages by instalments

157

In section 251(2) to (7) of AFA 2006 (power to allow payment of fine or service compensation order by instalments)—

(a) references to a fine include one awarded by virtue of any provision of AA 1955, AFA 1955, NDA 1957 or AFA 1976;

(b) references to a service compensation order include—

(i) stoppages under AA 1955, AFA 1955 or NDA 195; and

(ii) a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Imprisonment in default of payment of fine

158

(1) An order under section 71B(1) of AA 1955 or AFA 1955 or section 43B(1) of NDA 1957 (power to fix further consecutive term of imprisonment or detention in default of payment of fine) shall continue to have effect notwithstanding the repeal of that subsection by AFA 2006.

(2) In relation to such an order—

(a) subsections (3) to (6) of section 71B of AA 1955 or AFA 1955 or of section 43B of NDA 1957 (as the case may be) shall apply notwithstanding their repeal by AFA 2006; and

(b) in relation to any time after commencement, references in subsection (6) of section 71B of AA 1955 or AFA 1955 or of section 43B of NDA 1957 (as the case may be) to deductions from pay and amounts forfeited under Part 3 of AA 1955 or AFA 1955 or Part 4 of NDA 1957 are to be read as references to (respectively) deductions from pay and amounts forfeited in accordance with authority given by or under AFA 2006 or any other enactment.

CHAPTER 4 — Second class for conduct

Second class for conduct

159

(1) This article applies to a punishment of Reduction to the Second Class for Conduct, awarded by virtue of regulation 43 of the Naval Summary Discipline Regulations (February) 2009 , all or any of which falls to be served after commencement.

(2) Regulation 55 of those Regulations shall continue in force for the purposes of any such punishment, but with the following amendments.

(3) For paragraphs (c) and (d) substitute—

(c) perform extra duties (that is, work, training or any other duty performed by the rating at times when he would not otherwise be required to perform any duty)— (i) during the first 14 days of the punishment, for a period not exceeding 5½ hours each day; (ii) during the remainder of the punishment, for a period not exceeding 1 hour each day.

(4) In relation to a punishment of Reduction to the Second Class for Conduct to which this article applies, the offender's commanding officer—

(a) must decide in respect of each day of the punishment—

(i) what extra duties the rating must perform;

(ii) the period (not exceeding the permitted maximum) for which extra duties are to be performed; and

(iii) the time or times for performing the extra duties; and

(b) must inform the rating accordingly.

(5) The commanding officer may delegate any functions under paragraph (4) to a person of or above the rate of chief petty officer.

CHAPTER 5 — Restitution orders

Restitution orders

160

(1) Paragraph (2) applies in any case where an order under section 138 of AA 1955 or AFA 1955 or section 76 of NDA 1957 (restitution orders) was, immediately before commencement, suspended by virtue of section 138(10) of AA 1955 or AFA 1955 or section 77(1) of NDA 1957.

(2) The following provisions shall continue in force for the purposes of any such case—

(a) section 138(9), (10), and (12) of AA 1955 or AFA 1955 or, as the case may be, section 77 of NDA 1957 (with the substitution for references to the Courts-Martial Appeal Court of references to the Court Martial Appeal Court);

(b) section 46 of CMAA 1968.

(3) Section 46 of CMAA 1968 shall continue in force for the purposes of any case where, immediately before commencement, an order under section 138 of AA 1955 or AFA 1955 or section 76 of NDA 1957 is suspended by virtue of section 46 of CMAA 1968.

(4) For the avoidance of doubt, the operation of an order under section 138 of AA 1955 or AFA 1955 or section 76 of NDA 1957 which has taken effect (either before or after commencement) is not affected by the coming into force of the repeal of those sections.

CHAPTER 6 — SDA orders for conditional discharge

SDA orders for conditional discharge

161

In this Chapter—

“SDA order for conditional discharge” means an order under paragraph 3(1) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 discharging a person subject to a condition;

“the period of conditional discharge” means the period specified in the SDA order for conditional discharge.

Order of court-martial: conviction of further offence by Court Martial

162

(1) This article applies where—

(a) a person in whose case an SDA order for conditional discharge has been made is convicted by the Court Martial of an offence committed during the period of conditional discharge; and

(b) the order was made by a court-martial or the Appeal Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

Order of any SDA court: conviction of further offence by Service Civilian Court

163

(1) This article applies where a person in whose case an SDA order for conditional discharge has been made is convicted by the Service Civilian Court of an offence committed during the period of conditional discharge.

(2) The Service Civilian Court may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

Order of Standing Civilian Court: conviction of further offence by Court Martial

164

(1) This article applies where—

(a) a person in whose case an SDA order for conditional discharge has been made is convicted by the Court Martial of an offence committed during the period of conditional discharge; and

(b) the order was made by a Standing Civilian Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which the Service Civilian Court could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

Appeals against re-sentence, etc

165

(1) Paragraph (2) applies where a person is sentenced by a court under this Chapter for an offence in respect of which an SDA order for conditional discharge was made.

(2) The person is to be treated, for the purpose of enabling the making of an appeal against the sentence under CMAA 1968 or section 285 of AFA 2006, as if the conviction of that offence had been by the court which sentenced the person under this Chapter.

(3) Paragraph 5 of Schedule 5A to AA 1955 and AFA 1955 and of Schedule 4A to NDA 1957 continues to have effect in relation to SDA orders for conditional discharge, but as if the references in sub-paragraphs (1)(i) and (6) to paragraph 3(2) or (3) were to this Chapter.

CHAPTER 7 — Community supervision orders

Community supervision orders

166

(1) In this Chapter “a community supervision order” means an order under paragraph 4(1) of Schedule 5A to AA 1955 or of Schedule 5A to AFA 1955 or of Schedule 4A to NDA 1957.

(2) For the purposes of this Chapter a community supervision order is “current at commencement” if by commencement—

(a) the order has not been discharged under paragraph 4(11) of that Schedule or ceased to have effect by reason of paragraph 5(5) of that Schedule; and

(b) the supervision period has not ended.

(3) In this Chapter “the supervision period” means the period specified in a community supervision order.

Savings in respect of community supervision orders: provisions of SDAs

167

(1) In this article “the Schedule” means each of Schedule 5A to AA 1955, Schedule 5A to AFA 1955 and Schedule 4A to NDA 1957.

(2) The following provisions of paragraph 4 of the Schedule continue to have effect in relation to a community supervision order which is current at commencement—

(a) sub-paragraph (6) (failure to comply with order), subject to the modification in paragraph (3) below;

(b) sub-paragraph (7D) (limitation period for proceedings in respect of failure to comply);

(d) sub-paragraph (2) (definitions), so far as relating to the provisions saved by this Chapter.

(3) In paragraph 4(6) of the Schedule, as saved by this article, the words “triable by court-martial” are omitted.

Offence of failure to comply to be treated as service offence for certain purposes

168

(1) An offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement is to be treated as a service offence for the purposes of the following provisions of AFA 2006—

(a) section 50(1) (jurisdiction of Court Martial);

(b) section 51(1) (jurisdiction of Service Civilian Court);

(d) sections 67 and 68(3) (powers of arrest);

(e) Part 4 (custody);

(f) section 116(2) and (5) (duty of service policeman to refer case to DSP), subject to the modification in paragraph (4)(a) below;

(g) section 118 (duty of service policeman to notify CO of referral to DSP), subject to the modification in paragraph (4)(b) below;

(h) section 127(1) (direction barring further proceedings).

(2) A person may not be arrested under section 67 of AFA 2006 by virtue of paragraph (1)(d) above after the end of 6 months beginning with the end of the supervision period.

(3) In section 92 of AFA 2006 (power to make provision conferring powers of entry and search after arrest), the reference to a person who has been arrested under section 67 of that Act does not include a person so arrested by virtue of paragraph (1)(d) above.

(4) In their application to an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement—

(a) section 116(2)(b) of AFA 2006 has effect as if the words from “and is aware” to the end of the paragraph were omitted; and

(b) section 118 of that Act has effect as if subsection (3)(b) were omitted.

Community supervision order made by court-martial: conviction of further offence by Court Martial

169

(1) This article applies where—

(a) a person in whose case a community supervision order has been made is convicted by the Court Martial of any offence committed during the supervision period (including an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957); and

(b) the order was made by a court-martial or the Appeal Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

CSO made by any SDA court: conviction of further offence by Service Civilian Court

170

(1) This article applies where a person in whose case a community supervision order has been made is convicted by the Service Civilian Court of an offence committed during the supervision period (including an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957).

(2) The Service Civilian Court may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

CSO made by Standing Civilian Court: conviction of further offence by Court Martial

171

(1) This article applies where—

(a) a person in whose case a community supervision order has been made is convicted by the Court Martial of an offence committed during the supervision period (including an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957); and

(b) the order was made by a Standing Civilian Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which the Service Civilian Court could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

Restriction on other powers of punishment in respect of failure to comply with order

172

(1) Where the Court Martial or the Service Civilian Court convicts a person of 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, the court—

(a) may, instead of dealing with the offender under article 169, 170 or 171 for the offence for which the order was made, impose on the offender a fine not exceeding £1,000 for the offence under paragraph 4(6);

(b) may not impose any other punishment on the offender for that offence.

(2) Where the Court Martial or the Service Civilian Court convicts a person of an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement, the court may not impose any punishment for that offence (but this is without prejudice to its power to deal with the offender under article 169, 170 or 171 for the offence for which the order was made).

Appeals against re-sentence, etc

173

(1) Paragraph (2) applies where a person is sentenced by a court under this Chapter for an offence in respect of which a community supervision order was made.

(2) The person is to be treated, for the purpose of enabling the making of an appeal against the sentence under CMAA 1968 or section 285 of AFA 2006, as if the conviction of that offence had been by the court which sentenced the offender under this Chapter.

(3) Paragraph 5 of Schedule 5A to AA 1955 and AFA 1955 and of Schedule 4A to NDA 1957 continues to have effect in relation to community supervision orders, but as if the references in sub-paragraphs (1)(i) and (6) to paragraph 4(8) or (9) were to this Chapter.

(4) A conviction of an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement shall be deemed not to be a conviction except for the purposes of—

(a) this Chapter; and

(b) any appeal against the conviction or against a sentence passed by reason of the conviction.

Savings of regulations

174

(1) The following provisions of the Courts-Martial and Standing Civilian Courts (Army and Royal Air Force) (Additional Powers on Trial of Civilians) Regulations 1997 continue to have effect in relation to a community supervision order—

(a) regulation 4 (persons fit to be supervisors);

(b) regulation 6 (general duty of supervisor);

(d) regulation 9 (calculation of periods specified);

(e) regulation 12 (discharge or modification of order or replacement of supervisor), together with—

(i) row 1 of the Table in Part 2 of Schedule 2 as applied by regulation 12(1)(b); and

(ii) regulation 3 so far as relating to regulation 12(1)(b);

(f) the definition of “the 1955 Act” in regulation 2.

(2) In row 1 of the Table in Part 2 of Schedule 2 to those Regulations as saved by paragraph (1)(e) above, the reference to “the commanding officer of the offender” is to be read as to the person who is the offender's commanding officer within the meaning of AFA 2006.

CHAPTER 8 — Supplementary provisions relating to trial of civilians

Service of documents

175

(1) Regulation 11 of and Part 2 of Schedule 2 to the Additional Powers on Trial of Civilians Regulations (duty to serve court orders and copies) shall continue to have effect in relation to any case where, immediately before commencement, they required an order or certified copy to be served on a person.

(2) Regulation 3 of those regulations (method of service) shall continue in effect for the purposes of the provisions saved by paragraph (1).

(3) In those provisions—

(a) “the court administration officer” has the meaning given by section 374 of AFA 2006; and

(b) any reference to the commanding officer of the offender is to be read as to the person who is the offender's commanding officer within the meaning of AFA 2006.

(4) In this article “the Additional Powers on Trial of Civilians Regulations” means the Courts-Martial and Standing Civilian Courts (Army and Royal Air Force) (Additional Powers on Trial of Civilians) Regulations 1997.

PART 18 — DISCIPLINE: MISCELLANEOUS

Findings and sentences passed by reviewing authority

176

Any finding or sentence which, immediately before commencement, is to be treated by virtue of section 113AA of AA 1955 or AFA 1955, section 71 of NDA 1957 or paragraph 20 of Schedule 3 to AFA 1976 as having been made or passed by a court-martial or Standing Civilian Court is to continue to be treated for all purposes as having been made or passed by that court.

Testing for alcohol and drugs

177

(1) In section 308(1) of AFA 2006 (power to make regulations about testing for alcohol and drugs), the reference to the analysis of samples obtained under sections 305(1) and 306(2) of that Act includes the analysis of samples obtained under section 34A(1) of AA 1955 or AFA 1955, section 12A(1) of NDA 1957 or section 32(3) or (4) of AFA 2001.

(2) In section 308(3) of AFA 2006 (inadmissibility of analysis of sample)—

(a) the reference to a requirement imposed under section 305(1) or 306(2) of that Act includes a requirement imposed under section 34A(1) of AA 1955 or AFA 1955, section 12A(1) of NDA 1957 or section 32(3) or (4) of AFA 2001; and

(b) the reference to proceedings in respect of a service offence includes proceedings in respect of an SDA offence.

Offences in relation to service courts

178

(1) Where a person has been sentenced under section 57(2) of AA 1955 or AFA 1955 or section 38(3) of NDA 1957 (summary disposal of offences in relation to service courts), the sentence may be revoked and (if the person is in custody) his discharge ordered.

(2) The powers conferred by paragraph (1) may be exercised—

(a) where the person was sentenced by a court-martial, by the judge advocate for the court-martial;

(b) where the person was sentenced by a summary appeal court, by the judge advocate for the proceedings before the summary appeal court;

(3) Where—

(a) an offence has under section 101 of AA 1955 or AFA 1955 or section 65 of NDA 1957 been certified to a civil court in the United Kingdom or a British overseas territory, and

(b) that court has not exercised the powers conferred by that section,

section 311(3) of AFA 2006 (power of civil court to deal with contempt certified by service court) applies as if the offence had been certified to that court under section 311(2) of that Act.

(4) In section 312(3) and (4) of AFA 2006 (power to make committal for misbehaviour in court consecutive to a sentence), references to a sentence of service detention that has been passed on the person on a previous occasion include an SDA sentence of service detention.

(5) In section 312(6)(a) of AFA 2006 (inclusion of committal for misbehaviour in court in references to service detention), the reference to a committal to service custody under section 309 of that Act includes a sentence of detention under section 57(2) of AA 1955 or AFA 1955 or section 38(3) of NDA 1957.

Witness anonymity orders

179

(1) In section 6(1) of the Criminal Evidence (Witness Anonymity) Act 2008 (discharge or variation of witness anonymity order), the reference to a court that has made a witness anonymity order in relation to any criminal proceedings is to be read—

(a) in relation to an order made by a court-martial, as a reference to the Court Martial;

(b) in relation to an order made by a Standing Civilian Court, as a reference to the Service Civilian Court; and

(2) Section 311 of AFA 2006 (certification of contempt to civil courts) applies if, in relation to a witness anonymity order made by a court-martial, a Standing Civilian Court or a summary appeal court, a person within section 309(6) of that Act does any act that would constitute contempt of court if the order had been made by a court having power to commit for contempt.

(3) Where section 311 of AFA 2006 applies by virtue of paragraph (2) above—

(a) in subsection (2) of that section, “the qualifying service court” means—

(i) if the order was made by a court-martial, the Court Martial,

(ii) if the order was made by a Standing Civilian Court, the Service Civilian Court, and

(iii) if the order was made by a summary appeal court, the Summary Appeal Court,

and the definition of “qualifying service court” in subsection (5) of that section applies only for the purposes of subsection (4);

(b) in that section, “the offence” means the act mentioned in paragraph (2) above.

(4) In this article—

“act” includes an omission, and references to the doing of an act are to be read accordingly;

“witness anonymity order” has the same meaning as in the Criminal Evidence (Witness Anonymity) Act 2008.

Arrest by civilian police under warrant

180

(1) Section 313 of AFA 2006 (arrest by civilian police under warrant of judge advocate) is modified as follows.

(2) In subsection (1), the reference to a service offence includes an SDA offence.

(3) In subsections (3) and (4), references to a warrant issued under that section include a warrant issued under section 190A of AA 1955 or AFA 1955 or section 103 of NDA 1957.

Arrest by civilian police of deserters etc

181

(1) In sections 314 to 316 of AFA 2006 (arrest etc by civilian police of deserters and absentees without leave), references to a person subject to service law who has deserted include a person who is subject to service law and has committed an offence under section 37(1) of AA 1955 or AFA 1955 or section 16(1) of NDA 1957.

(2) In section 314(4) of AFA 2006, the reference to a person arrested under section 314 includes—

(a) a person who was arrested before commencement under section 186 of AA 1955 or AFA 1955 or section 105 of NDA 1957 in a relevant territory (as defined by section 314(5) of AFA 2006) and has not been brought before a court of summary jurisdiction; and

(b) a person arrested after commencement, in a relevant territory, in pursuance of a warrant issued under section 186(3) of AA 1955 or AFA 1955 or section 105(3) of NDA 1957.

(3) Section 315(1) of AFA 2006 applies in relation to a person who before commencement surrendered himself to a constable in a relevant territory as being a person illegally absent from the regular forces (within the meaning of AFA 2006) and has not been brought to a police station under section 188(1) of AA 1955 or AFA 1955 or section 108(1) of NDA 1957.

(4) Section 315(3) and (4) of AFA 2006 apply in relation to a person who—

(a) was brought to a police station in a relevant territory under section 188(1) of AA 1955 or AFA 1955 or section 108(1) of NDA 1957, or surrendered himself to a constable at such a police station as being a person illegally absent from the regular forces (within the meaning of AFA 2006); and

(b) has not been delivered into service custody, brought before a court of summary jurisdiction or released from police custody.

(5) In paragraphs (3) and (4)—

(a) references to section 188(1) of AA 1955 include that subsection as applied by section 13 of the Visiting Forces Act 1952 ; and

(b) references to a person illegally absent from the regular forces include a person illegally absent from the forces of a country to which that section applies.

Remand by civil court

182

(1) In this article, references to a person's remand are to his remand under section 187(2) or (3) of AA 1955 or AFA 1955, section 109(1)(b) or (3)(a) of NDA 1957 or paragraph 4(2)(b) or 5(3) of Schedule 2 to RFA 1996 for the purpose of arranging for his delivery into service custody.

(2) A person remanded in custody is to be regarded as having been committed under section 316(5) of AFA 2006 to be held in custody pending his transfer into service custody.

(3) Where a person was remanded on bail and answers to his bail, section 316(3) of AFA 2006 (transfer into service custody) applies.

(4) Where a person was remanded on bail and does not answer to his bail, he is to be regarded for the purposes of section 317 of AFA 2006 (warrant for arrest) as having been released under section 316(3)(a)(ii) of that Act subject to a condition that he report to the court by which he was remanded on the date to which he was remanded.

Arrest of persons unlawfully at large

183

(1) In section 318(1) of AFA 2006 (arrest by civilian police of persons unlawfully at large) the reference to a person who has been sentenced to service detention includes a person on whom an SDA sentence of service detention has been passed.

(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 318(1) 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 318(1) 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.

(4) Where a person on whom an SDA sentence of service detention had been passed was arrested by a constable under section 190B of AA 1955 or AFA 1955 or section 104 of NDA 1957 and has not been taken to a place in which he could be required to be detained, paragraph (b) of section 318(1) of AFA 2006 applies as if the constable had arrested him under paragraph (a) of that subsection.

The Criminal Cases Review Commission

184

(1) In section 12A(1) of the Criminal Appeal Act 1995 (reference of conviction by the Court Martial) the reference to a person convicted by the Court Martial includes a person so convicted on an appeal brought from a Standing Civilian Court.

(2) In section 12A(2) of that Act (reference of sentence passed by the Court Martial on appeal against sentence) the reference to a person convicted by the Service Civilian Court includes a person convicted by a Standing Civilian Court.

(3) In section 12B(1) of that Act (reference of conviction or sentence by the Service Civilian Court) the reference to a person convicted of an offence by the Service Civilian Court includes a person convicted of an offence by a Standing Civilian Court; but, in relation to such a person, that subsection has effect as if for paragraphs (a) and (b) there were substituted “may at any time refer to the Court Martial any sentence imposed by the Service Civilian Court in proceedings relating to the conviction”.

Financial penalty enforcement orders

185

(1) In section 322 of AFA 2006 (power to make regulations for the enforcement of financial penalties), “financial penalty” includes—

(a) a fine or stoppages awarded under AA 1955, AFA 1955 or NDA 1957;

(b) a fine awarded by a Standing Civilian Court;

(d) an order under paragraph 13 of any of those Schedules that a service parent or guardian pay a fine or compensation; and

(e) a sum adjudged to be paid under paragraph 14(4) of any of those Schedules (forfeiture of recognisance).

(2) In paragraph (1) the reference to a fine awarded under AA 1955 or AFA 1955 includes a fine to which a person was sentenced under section 57(2) of either of those Acts, and the reference to a fine awarded under NDA 1957 includes a fine to which a person was sentenced under section 38(3) of that Act.

Evidential burden as respects excuses

186

The offences to which section 325 of AFA 2006 (evidential burden as respects lawful or reasonable excuse) applies include—

(a) any SDA offence (other than an SDA civil offence) which is such that a person who would otherwise commit the offence—

(i) does not do so if he has a lawful excuse; or

(ii) does not do so if he has a reasonable excuse; and

(b) an offence committed after commencement under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 (as saved by article 167).

Local probation boards

187

In section 5A(1) of the Criminal Justice and Court Services Act 2000 (powers of local probation boards in relation to service justice) the reference to persons who have been subject to proceedings before the Court Martial, the Summary Appeal Court or the Service Civilian Court includes persons who have been subject to proceedings before a court-martial, a summary appeal court or a Standing Civilian Court.

Judge advocates

188

In section 362(c) of AFA 2006 (nomination of puisne judge to sit as judge advocate) the reference to nomination includes nomination before commencement.

PART 19 — ENLISTMENT, TERMS OF SERVICE ETC

Interpretation

189

References in this Part to a person's enlistment before commencement are to—

(a) his enlistment in the regular army, the Royal Marines or the regular air force before commencement, or

(b) his entry for service in the Royal Navy before commencement,

and references to persons enlisted before commencement are to be read accordingly.

Enlistment

190

In section 328 of AFA 2006 (power to make regulations with respect to the enlistment of persons in the regular forces)—

(a) subsection (1) is to be read as including power to make provision deeming a person to have been appointed as a recruiting officer if immediately before commencement he was—

(i) a recruiting officer within the meaning given by section 1 of AA 1955 or AFA 1955; or

(ii) authorised under regulations made by the Defence Council to enter persons for service in the Royal Navy;

(b) in subsection (2)(g) (approval for service) the reference to persons who have enlisted includes persons enlisted before commencement;

(c) in subsection (3) (validity of enlistment) references to a person's enlistment include a person's enlistment before commencement, and “enlisted” is to be read accordingly.

Terms and conditions of enlistment and service

191

(1) In section 329(1) of AFA 2006 (power to make regulations with respect to terms and conditions of enlistment and service) the reference to persons who have enlisted in the regular forces includes persons enlisted before commencement.

(2) Each of the following have effect as if made under that subsection—

(a) the Royal Marines Terms of Service Regulations 2006 ;

(b) the Royal Navy Terms of Service (Ratings) Regulations 2006 ;

(d) the Army Terms of Service Regulations 2007 .

Desertion and absence without leave: forfeiture of service etc

192

(1) In section 330(1) of AFA 2006 (power to make regulations with respect to a confession of desertion) references to a confession that a person is guilty of an offence under section 8 of that Act include a confession, whether made before or after commencement, that he is guilty of an offence under section 37 of AA 1955 or AFA 1955 or section 16 of NDA 1957.

(2) In section 330(2) of AFA 2006 (power to make regulations providing for forfeiture of service by a person convicted of desertion) the reference to an offence under section 8 of that Act includes an offence under section 37 of AA 1955 or AFA 1955 or section 16 of NDA 1957.

(3) Section 330(1) to (3) of AFA 2006 are to be read as including power to make provision as to the effect of—

(a) a direction given under section 81(2) of AA 1955 or AFA 1955,

(b) an order made under section 74(1) of NDA 1957, or

(c) the forfeiture of a period of service by virtue of section 17(1) or 81(2) of AA 1955 or AFA 1955, or section 74(1) or 129D(1) of NDA 1957,

and enabling a determination to be made in prescribed circumstances restoring (in whole or in part) a period of service forfeited by virtue of such a direction or order or of any provision mentioned in sub-paragraph (c).

Discharge etc from the regular forces and transfer to the reserve forces

193

(1) In section 331(3) of AFA 2006 (power to make regulations conferring on a warrant officer a right to be discharged following his reduction in rank or rate) references to a warrant officer's reduction in rank or rate include a reduction imposed before commencement.

(2) Section 331(4) of that Act (power to make regulations enabling a person's discharge or transfer to the reserve forces to be postponed) is to be read as including power to make provision as to the effect of—

(a) a person's retention in service by virtue of section 9 of AA 1955 or AFA 1955, paragraph 4A of Schedule 7 to AA 1955 or section 4 of AFA 1966;

(b) a declaration made by a person under section 9(6) of AA 1955 or AFA 1955, paragraph 4A(6) of Schedule 7 to AA 1955 or section 4(6) of AFA 1966; and

Membership of reserve force

194

Paragraph 25 of Schedule 14 to AFA 2006 (amendment of section 2(2)(a) of RFA 1996) does not prevent a person who, immediately before commencement, was a member of a reserve force from continuing to be a member of that force.

Term of compulsory service

195

In section 13(7) of RFA 1996 (definition of “term of compulsory service”) the reference to a requirement imposed under AFA 2006 includes a requirement imposed by or under AA 1955, AFA 1955 or AFA 1966.

Complaints to employment tribunals etc

196

(1) In the following provisions, references to a service complaint include a complaint made under the service redress procedures—

(a) sections 7A(5), 7AB and 7AC of the Equal Pay Act 1970 ;

(b) sections 6A(5) and 6AB of the Equal Pay Act (Northern Ireland) 1970 ;

(d) section 75(9) of the Race Relations Act 1976 ;

(e) article 82(9B) of the Sex Discrimination (Northern Ireland) Order 1976 ;

(f) section 192(4) of the Employment Rights Act 1996;

(g) article 71(8) of the Race Relations (Northern Ireland) Order 1997 .

(2) In the following provisions, references to the service complaint procedures include the service redress procedures—

(a) section 7A(7) of the Equal Pay Act 1970;

(b) section 6A(7) of the Equal Pay Act (Northern Ireland) 1970;

(d) section 75(9B) of the Race Relations Act 1976;

(e) article 82(9D) of the Sex Discrimination (Northern Ireland) Order 1976;

(f) section 192(5) of the Employment Rights Act 1996;

(g) article 71(10) of the Race Relations (Northern Ireland) Order 1997;

but nothing in this paragraph authorises the making, after 31st December 2007, of a complaint under the service redress procedures.

(3) In this article “the service redress procedures” means the procedures, excluding those which relate to the making of a report on a complaint to Her Majesty, referred to in section 180 of AA 1955 or AFA 1955 or section 130 of NDA 1957.

PART 20 — FORFEITURES AND DEDUCTIONS

Permitted forfeitures and deductions

197

(1) Section 342(1) of AFA 2006 (power to make regulations permitting forfeitures and deductions) is modified as follows.

(2) In paragraph (a), the reference to a period of prescribed absence from duty includes a period of such absence at a time when the person subject to service law was subject to military or air-force law or to NDA 1957.

(3) In paragraph (b), the reference to an order by a civilian court includes an order made before commencement.

(4) In paragraph (c), the reference to loss or damage includes loss or damage before commencement.

(5) In paragraph (d), the reference to a financial penalty includes—

(a) a fine or stoppages imposed by virtue of any provision of AA 1955, AFA 1955 or NDA 1957 (including a fine with respect to which an order under paragraph 13 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 (order for service parent or guardian to pay fine or compensation) has been made);

(b) a compensation order with respect to which such an order has been made;

(c) a sum adjudged to be paid under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 (forfeited recognisance).

Forfeitures and deductions permitted, ordered or authorised before commencement

198

(1) Where, immediately before commencement, any sum is liable to be deducted from a person's pay by virtue of section 146 of AA 1955 or AFA 1955 or section 128B of NDA 1957 (deductions for payment of civil penalties), the sum may be deducted from his pay notwithstanding the repeal of that section by AFA 2006.

(2) Where, immediately before commencement, an order made against a person under section 147(2) of AA 1955 or AFA 1955 or section 128C(2) of NDA 1957 has effect (compensation for loss or damage), the sum specified in the order may be deducted from his pay, in so far as not otherwise paid by him, notwithstanding the repeal of that subsection by AFA 2006.

(3) Where, immediately before commencement, an order made under—

(a) section 150(1), 150A(2), 150AA(2) or 151(1) of AA 1955 or AFA 1955 (maintenance etc), or

(b) section 151A(1) of AA 1955 or AFA 1955, or section 128E(1) of NDA 1957 (judgment debts etc),

has effect, the order shall continue to have effect notwithstanding the repeal of that subsection by AFA 2006; but this is subject to paragraph (4).

(4) The Defence Council or an officer authorised by them—

(a) may by order vary or revoke any order made under section 150(1), 151(1) or 151A(1) of AA 1955 or AFA 1955, or section 128E(1) of NDA 1957; and

(b) may treat any order made under section 150(1), 151(1) or 151A(1) of AA 1955 or AFA 1955 as being in suspense at any time while the person against whom the order was made is absent without leave.

(5) Where, immediately before commencement, an authorisation of deductions from a person's pay by virtue of section 1(1) of the Naval Forces (Enforcement of Maintenance Liabilities) Act 1947 has effect (deductions in respect of liabilities for maintenance etc), the authorisation shall continue to have effect notwithstanding the repeal of that subsection, and the amendment of section 3 of the Naval and Marine Pay and Pensions Act 1865 , by AFA 2006.

(6) In subsection (3) of section 342 of AFA 2006 (power to remit forfeitures and deductions), the reference to a forfeiture or deduction imposed by virtue of subsection (1)(a), (b) or (c) of that section includes—

(a) a forfeiture imposed by virtue of section 145 of AA 1955 or AFA 1955 or section 16(2), 17 or 75(1) of NDA 1957 (forfeiture of pay for absence from duty etc); and

(b) a deduction imposed by virtue of this article or any provision mentioned in this article.

PART 21 — MISCELLANEOUS

Offences punishable by civilian courts

199

(1) In paragraph (a) of section 344(3) of AFA 2006 (offence of impeding a person's apprehension or prosecution for desertion or absence without leave), the reference to an offence under section 8 or 9 of that Act includes an offence under section 37 or 38 of AA 1955 or AFA 1955 or section 16 or 17 of NDA 1957.

(2) The repeal of section 220 of AA 1955, section 218 of AFA 1955 and section 100 of NDA 1957 does not deprive any court of any jurisdiction which it would otherwise have had.

Evidence in proceedings before civilian courts

200

(1) In section 372 of AFA 2006 (evidence in proceedings before civilian courts) the reference to an offence created by or under AFA 2006 includes—

(a) an SDA offence;

(b) an offence under any of sections 19, 161, 171 and 191 to 197 of AA 1955 or AFA 1955.

(2) In relation to any proceedings which are part heard at commencement, section 198 of AA 1955 and AFA 1955 and paragraphs 1 to 8 of Schedule 3 to RFA 1996 shall continue to apply, notwithstanding their repeal by AFA 2006.

(3) For the purposes of paragraph (2), proceedings before a civilian court are part heard if—

(a) the first hearing (or, in Scotland, the first calling) in those proceedings has taken place; and

(b) the proceedings have not been concluded.

Trial by civil courts of offences committed before commencement

201

(1) In section 105(3) of RFA 1996 (service offences triable by civil court) the reference to any service offence other than an offence under that Act or an offence mentioned in section 98(1) of that Act includes any SDA offence other than—

(a) an offence under RFA 1996; or

(b) an offence under section 37 or 38 of AA 1955 or AFA 1955 or section 16 or 17 of NDA 1957 (desertion and absence without leave).

(2) In relation to an offence under section 95(1)(b) of RFA 1996 (threatening or insulting language or insubordination), section 95(2)(b) of that Act has effect without the amendment made by AFA 2006.

(3) In section 98(1) and (3) of RFA 1996 (trial and punishment by civil court of desertion or absence without leave), references to an offence under section 8 or 9 of AFA 2006 include an offence under section 37 or 38 of AA 1955 or AFA 1955 or section 16 or 17 of NDA 1957.

(4) In relation to an offence under section 99 of RFA 1996 (false pretence of illegal absence) committed before commencement, that section has effect notwithstanding its repeal by AFA 2006.

(5) In section 107(1) of RFA 1996 (time for institution of proceedings) the reference to a service offence includes an SDA offence.

(6) Section 107(3) of RFA 1996 (time for institution of proceedings for an offence under section 96(1) committed by a person liable to recall) does not apply in relation to an offence under section 96(1) of that Act committed before commencement if, immediately before commencement, any enactment prohibited the institution of proceedings for the offence.

(7) For the purposes of paragraph (6), an enactment is to be regarded as having prohibited the institution of proceedings for an offence if, had proceedings been instituted, the enactment would have prohibited the trial of the offence.

Affidavits and declarations

202

Section 204(2) of AA 1955 or (as the case may be) AFA 1955 (admissibility of document pursuant to affidavit or declaration) shall continue to apply in relation to an affidavit or declaration taken in pursuance of the power conferred by section 204(1) of that Act, notwithstanding its repeal by AFA 2006.

Protection of children of service families

203

In section 20(6)(b)(iii) of AFA 1991 (return of child to person other than parent etc), the reference to the agreement of a judge advocate includes an agreement given before commencement by the officer having jurisdiction.

Service of process

204

In section 355(2)(b) of AFA 2006 (power to make provision with respect to cases in which service of process is to be of no effect), the reference to service of process includes service of process on a person's commanding officer before commencement.

Minor and consequential amendments and repeals

205

Schedule 1 has effect.

Transitory provisions

206

Schedule 2 has effect.

SCHEDULE 1 — Minor and consequential amendments and repeals

Debts (Deceased Servicemen etc) Act 1893

1

(1) In the Debts (Deceased Servicemen etc) Act 1893 , “subject to service law” is to be read, in relation to any time before commencement, as “subject to military law or air-force law”.

(2) In section 23 of that Act (application of Act to deserters etc), the reference to deserting is to be read, in relation to any time before commencement, as a reference to committing an offence under section 37 of AA 1955 by virtue of subsection (2)(a) of that section.

(3) In section 29A(1) of that Act (application of Act to members of naval, marine or air forces), the reference to a relevant person includes a person who was subject to air-force law.

Criminal Evidence Act 1898

2

In section 6(1B) of the Criminal Evidence Act 1898 (application of Act), the reference to a service offence includes an SDA offence.

Army and Air Force (Women's Service) Act 1948

3

The amendment made to section 4 of the Pensions and Yeomanry Pay Act 1884 (distribution of money not exceeding £5,000 without probate) by the Army and Air Force (Women's Service) (Adaptation of Enactments) Order 1949 shall continue to have effect notwithstanding the repeal of the Army and Air Force (Women's Service) Act 1948 .

Prison Act 1952

4

In section 43(8) of the Prison Act 1952 (centres for detention of young offenders), the reference to a custodial sentence passed in respect of a service offence includes—

(a) an SDA custodial sentence; and

(b) a custodial sentence passed in respect of an SDA offence.

Emergency Laws (Miscellaneous Provisions) Act 1953

5

Section 10(2) of the Emergency Laws (Miscellaneous Provisions) Act 1953 (admission in evidence of affidavit taken under section 10) shall continue to apply in relation to an affidavit or declaration taken in pursuance of the power conferred by section 10(1) of that Act, notwithstanding its repeal by AFA 2006.

Registration of Births, Deaths and Marriages (Special Provisions) Act 1957

6

(1) Sections 1, 2 and 5 of the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 (records of births, deaths and marriages among armed forces and service civilians, and registration of births of legitimated persons in the service department registers) shall continue to apply, in relation to an event within paragraph (2) occurring before commencement, without the amendments to those sections made by AFA 2006.

(2) The events are—

(a) birth;

(b) death;

(d) formation of civil partnership.

Coroners Act (Northern Ireland) 1959

7

Section 18(4) of the Coroners Act (Northern Ireland) 1959 (jury not to be summoned in certain cases: deaths on service custody premises) shall have effect, in relation to a death occurring before commencement on premises which would, if section 300 of AFA 2006 had been in force at the time of the death, have been service custody premises, as if the reference to service custody premises included those premises.

Criminal Justice Act 1961

8

In section 22 of the Criminal Justice Act 1961 (assisting escaped prisoners etc), the reference in subsection (2) to a person who has been sentenced as mentioned there includes—

(a) a person on whom an SDA custodial sentence has been passed (anywhere); and

(b) a person on whom a custodial sentence has been passed (anywhere) in respect of an SDA offence.

Parliamentary Commissioner Act 1967

9

In paragraph 6 of Schedule 3 to the Parliamentary Commissioner Act 1967 (matters not subject to investigation), the reference to service law proceedings includes proceedings under AA 1955, AFA 1955, NDA 1957 or AFA 1976.

Criminal Justice Act 1967

10

In section 72 of the Criminal Justice Act 1967 (power to issue warrant for arrest of escaped prisoners etc), references to offences include SDA offences.

Civil Evidence Act 1968

11

(1) In sections 11 and 13 of the Civil Evidence Act 1968 (convictions as evidence in civil proceedings)—

(a) references to a service offence include an SDA offence; and

(b) references to a conviction, in relation to SDA offences, include—

(i) a conviction by a court-martial (anywhere);

(ii) a conviction by a Standing Civilian Court;

(iii) a finding which, under AA 1955, AFA 1955, NDA 1957 or CMAA 1968 falls to be treated as a conviction by a court-martial;

(iv) a finding which, under paragraph 20 of Schedule 3 to AFA 1976, falls to be treated as a conviction by a Standing Civilian Court;

(v) a finding at a summary hearing under AA 1955 or AFA 1955 that a charge has been proved;

(vi) a finding by a summary appeal court under AA 1955 or AFA 1955 that a charge has been proved;

(vii) a finding of guilt at a summary trial under NDA 1957, or by the summary appeal court under that Act.

(2) In section 11(5)(aa) of the Civil Evidence Act 1968, the reference to section 187 of AFA 2006 includes paragraph 5 of each of Schedule 5A to AA 1955, Schedule 5A to AFA 1955 and Schedule 4A to NDA 1957.

Civil Evidence Act (Northern Ireland) 1971

12

(1) In sections 7 and 9 of the Civil Evidence Act (Northern Ireland) 1971 (convictions as evidence in civil proceedings)—

(a) references to a service offence include an SDA offence; and

(b) references to a conviction, in relation to SDA offences, include—

(i) a conviction by a court-martial (anywhere);

(ii) a conviction by a Standing Civilian Court;

(iii) a finding which, under AA 1955, AFA 1955, NDA 1957 or CMAA 1968 falls to be treated as a conviction by a court-martial;

(iv) a finding which, under paragraph 20 of Schedule 3 to AFA 1976, falls to be treated as a conviction by a Standing Civilian Court;

(v) a finding at a summary hearing under AA 1955 or AFA 1955 that a charge has been proved;

(vi) a finding by a summary appeal court under AA 1955 or AFA 1955 that a charge has been proved;

(vii) a finding of guilt at a summary trial under NDA 1957, or by the summary appeal court under that Act.

(2) In section 7(5)(bb) of the Civil Evidence Act (Northern Ireland) 1971, the reference to section 187 of AFA 2006 includes paragraph 5 of each of Schedule 5A to AA 1955, Schedule 5A to AFA 1955 and Schedule 4A to NDA 1957.

Juries Act 1974

13

In paragraph 8(a) of Schedule 1 to the Juries Act 1974 (persons disqualified for jury service), the reference to a service offence includes an SDA offence.

Rehabilitation of Offenders Act 1974

14

No amendment by AFA 2006 of the Rehabilitation of Offenders Act 1974 —

(a) causes a conviction which, immediately before the amendment came into force, was spent (within the meaning of that Act) to cease to be spent; or

(b) has the effect of increasing the rehabilitation period (within the meaning of that Act) in respect of a conviction which occurred before commencement.

Bail Act 1976

15

In paragraph 4 of each of Parts 1 and 2 of Schedule 1 to the Bail Act 1976 (provisions relating to persons entitled to bail), the reference to a sentence imposed by an officer under AFA 2006 includes a sentence imposed by any authority acting under AA 1955, AFA 1955, NDA 1957 or AFA 1976.

Race Relations Act 1976

16

(1) In section 57(4B) of the Race Relations Act 1976 (claims under Part 3), the reference to a service offence includes an SDA offence.

(2) In section 78(1) of that Act (general interpretative provisions), in the definition of “criminal proceedings” the reference to service law proceedings includes—

(a) proceedings on dealing summarily with a charge under AA 1955 or AFA 1955;

(b) proceedings on summary trial under NDA 1957;

(d) proceedings before a court-martial constituted under any of those Acts or a disciplinary court constituted under section 52G of NDA 1957 ;

(e) proceedings before the Appeal Court before commencement; and

(f) proceedings before a Standing Civilian Court.

Rehabilitation of Offenders (Northern Ireland) Order 1978

17

No amendment by AFA 2006 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 —

(a) causes a conviction which, immediately before the amendment came into force, was spent (within the meaning of that Order) to cease to be spent; or

(b) has the effect of increasing the rehabilitation period (within the meaning of that Order) in respect of a conviction which occurred before commencement.

Magistrates' Courts Act 1980

18

(1) In section 19(5) of the Magistrates' Courts Act 1980 (decision as to allocation)—

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

(b) the reference to a previous conviction, in relation to an SDA offence, includes—

(i) a previous finding of guilt in proceedings under AA 1955, AFA 1955 or NDA 1957 (whether before a court-martial or any other court or person authorised under any of those Acts to award a punishment in respect of any offence);

(ii) a previous finding of guilt in any proceedings before a Standing Civilian Court.

(2) In section 125D(3)(b) of the Magistrates' Courts Act 1980 (execution of warrants), the reference to a warrant includes a warrant under section 186(3) of AA 1955 or AFA 1955, section 105(3) of NDA 1957 or paragraph 2(3) of Schedule 2 to RFA 1996.

Public Passenger Vehicles Act 1981

19

In paragraph 1(7) of Schedule 3 to the Public Passenger Vehicles Act 1981 (supplementary provisions as to qualifications for PSV operator's licence) the reference to an offence under section 42 of AFA 2006 includes an SDA civil offence.

Contempt of Court Act 1981

20

In paragraph 1A of Schedule 1 to the Contempt of Court Act 1981 (times when proceedings are active for purposes of section 2), the reference to a service offence includes an SDA offence.

Senior Courts Act 1981

21

In section 29(3A) of the Senior Courts Act 1981 (mandatory, prohibiting and quashing orders)—

(a) the reference to the Service Civilian Court includes a Standing Civilian Court; and

(b) the reference to the jurisdiction of the Court Martial in the matters mentioned there includes the jurisdiction of a court-martial in matters relating to—

(i) trial by court-martial for an offence; or

(ii) appeals from a Standing Civilian Court.

Armed Forces Act 1981

22

Any enactment which was passed after AFA 1981 and before or in the same session as AFA 2006 shall continue to have effect as if paragraph 2 of Schedule 3 to AFA 1981 (women's services: application of paragraph 1(1) to future enactments) had not been repealed.

Criminal Justice Act 1982

23

In section 32(1)(c) of the Criminal Justice Act 1982 (early release of prisoners)—

(a) the reference to an offence under section 42 of AFA 2006 includes an SDA civil offence; and

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

Representation of the People Act 1983

24

(1) In section 3(2)(a) of the Representation of the People Act 1983 (disenfranchisement of offenders in prison etc), the reference to a service offence includes an SDA offence.

(2) In section 3A(5) of that Act (disenfranchisement of offenders detained in mental hospitals), the reference to Schedule 4 to AFA 2006 includes sections 116A(2) and 116B(2)(d) of AA 1955 and AFA 1955, sections 63A(2) and 63B(2)(d) of NDA 1957, and sections 16 and 23 of CMAA 1968 as they had effect before the amendments made by AFA 2006.

Mental Health Act 1983

25

In section 47(5)(a) of the Mental Health Act 1983 (removal to hospital of prisoners etc)—

(a) the reference to service disciplinary proceedings includes proceedings in respect of an SDA offence (whether proceedings under AFA 2006 or an earlier enactment); and

(b) the reference to a sentence of service detention includes an SDA sentence of service detention.

Repatriation of Prisoners Act 1984

26

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