The Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009

• “legal representative” means— a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990³; an advocate or solicitor in Scotland; a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or a person who has in any of the Channel Islands, the Isle of Man, a Commonwealth country or a British overseas territory rights and duties similar to those of a barrister or solicitor in England and Wales and is subject to punishment or disability for a breach of professional rules;

• “retention” means retention by the person who was authorised under section 87 or 88 of the Act to conduct the search which is the subject of the review; and

• “return” in relation to seized property means, except in the definition of “disposal”, return to the occupier of the premises from which it was seized.

• (12) In this article, an occupier of premises which are service living accommodation is—

• (a) if the premises are a building or part of a building within section 96(1)(a) of the Act, any person for whose use as living accommodation or as a garage that building or part of a building is provided;

• (b) if the premises are a room, structure or area within section 96(1)(b) of the Act, any person for whom the premises are used to provide sleeping accommodation;

• (c) if the premises are a locker within section 96(1)(c) of the Act, the person for whose personal use the locker is provided.

PART 6 — Transitional and transitory provisions

Transitional provisions

35

Schedule 4 shall have effect.

Reference to the Court of Judicature of Northern Ireland

36

Until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005⁴ comes into force, the reference in article 34(11) to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland.

SCHEDULE 1 — EXCLUDED AND SPECIAL PROCEDURE MATERIAL

Making of orders by judge advocates

1

If on an application made by a service policeman a judge advocate is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 5.

2

The first set of access conditions is fulfilled if—

• (a) there are reasonable grounds for believing—

• (i) that a relevant offence has been committed;

• (ii) that on relevant residential premises specified in the application there is material which consists of special procedure material or includes special procedure material and does not also include excluded material;

• (iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and

• (iv) that the material is likely to be relevant evidence;

• (b) other methods of obtaining the material—

• (i) have been tried without success; or

• (ii) have not been tried because it appeared that they were bound to fail; and

• (c) it is in the public interest, having regard—

• (i) to the benefit likely to accrue to the investigation if the material is obtained; and

• (ii) to the circumstances under which the person in possession of the material holds it,

that the material should be produced or that access to it should be given.

3

The second set of access conditions is fulfilled if—

• (a) there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on relevant residential premises specified in the application;

• (b) but for section 9(2) of PACE a search of the premises for that material could have been authorised by the issue of a warrant to a constable under any of the enactments specified in paragraph 4 in a case in which—

• (i) the specified premises were in England; and

• (ii) the offence in respect of which the warrant was sought was committed in England; and

• (c) the issue of such a warrant would have been appropriate.

4

The enactments referred to in paragraph 3(b) are—

• (a) section 9 of the Official Secrets Act 1911⁵;

• (b) section 26 of the Theft Act 1968⁶; and

• (c) section 4 of the Biological Weapons Act 1974⁷.

5

An order under this paragraph is an order that the person who appears to the judge advocate to be in possession of the material to which the application relates shall—

• (a) produce it to a service policeman for him to take away, or

• (b) give a service policeman access to it,

not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify.

6

Where the material consists of information stored in any electronic form—

• (a) an order under paragraph 5(a) shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form; and

• (b) an order under paragraph 5(b) shall have effect as an order to give a service policeman access to the material in a form in which it is visible and legible.

7

For the purposes of articles 16 and 17 material produced in pursuance of an order under paragraph 5(a) shall be treated as if it were material seized by a service policeman.

Notices of applications for orders

8

An application for an order under paragraph 5 shall be made inter partes.

9

• (1) Notice of an application for such an order may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter or by the recorded delivery service.

• (2) For the purposes of sub-paragraph (1), the reference to a person’s proper address shall be to such address determined in accordance with paragraph 10.

10

• (1) Subject to sub-paragraph (2), the proper address of a person subject to service law is the address of the unit to which he belongs.

• (2) Where a person subject to service law is attached to a unit, a reference to his proper address is to the address of the unit to which he is attached.

• (3) The proper address of a person who is not subject to service law is his usual or last known place of residence.

11

Where notice of an application for an order under paragraph 5 has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except—

• (a) with the leave of a judge advocate, or

• (b) with the written permission of a service policeman,

until the application is dismissed or abandoned or he has complied with an order under paragraph 5 made in respect of the application.

Issue of warrants by judge advocate

12

If on an application made by a service policeman a judge advocate—

• (a) is satisfied—

• (i) that either set of access conditions is fulfilled, and

• (ii) that any of the further conditions set out in paragraph 14 are also fulfilled, or

• (b) is satisfied—

• (i) that the second set of access conditions is fulfilled, and

• (ii) that an order under paragraph 5 relating to the material has not been complied with,

he may issue a warrant authorising a service policeman to enter and search the premises.

13

A service policeman may seize and retain anything for which a search has been authorised under paragraph 12.

14

The further conditions mentioned in paragraph 12(a)(ii) are—

• (a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

• (b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material;

• (c) that the material contains information which—

• (i) is subject to a restriction or obligation such as is mentioned in section 11(2)(b) of PACE; and

• (ii) is likely to be disclosed in breach of it if a warrant is not issued;

• (d) that service of notice of an application for an order under paragraph 5 may seriously prejudice the investigation.

SCHEDULE 2 — OATHS AND AFFIRMATIONS

1

The service policeman taking the oath shall hold the New Testament, or if a Jew the Old Testament, in his uplifted hand and shall say, or repeat after the person administering it, the oath provided in paragraph 5 of this Schedule.

2

If the service policeman to whom an oath is administered desires to swear in the form and manner in which an oath is usually administered in Scotland, he may do so with uplifted hand and saying, or repeating after the person administering it, the Scottish oath provided in paragraph 6 of this Schedule.

3

If neither of the forms of oath provided in this Schedule is appropriate to the religious beliefs of the service policeman taking the oath, an oath may be administered in such form and manner as the service policeman taking the oath declares to be binding on his conscience in accordance with his religious beliefs.

4

A service policeman making a solemn affirmation instead of taking an oath shall say, or repeat after the person administering it, the affirmation provided in paragraph 7 of this Schedule.

5

The oath shall be sworn in the following form:

I swear by Almighty God that I shall truthfully answer any questions I am asked.

6

The form of Scottish oath shall be the same as the form of oath set out above except that for the words “I swear by Almighty God” there shall be substituted the words “I swear by Almighty God and as I shall answer to God at the Great Day of Judgment”.

7

The form of affirmation shall be the same as the form of oath set out in paragraph 5 except that for the words “I swear by Almighty God” there shall be substituted the words “I (state name) solemnly, sincerely and truly declare and affirm”.

SCHEDULE 3 — LIST OF SERVICE OFFENCES THAT ARE RELEVANT OFFENCES

assisting an enemy

SCHEDULE 4 — TRANSITIONAL PROVISIONS

Interpretation

1

In this Schedule—

• “the 1955 Acts” means the Army Act 1955⁸ and the Air Force Act 1955⁹;

• “the 1957 Act” means the Naval Discipline Act 1957¹⁰;

• “the 2001 Act” means the Armed Forces Act 2001¹¹;

• “the 2003 Order” means the Armed Forces (Entry, Search and Seizure) Order 2003¹²;

• “the 2006 Order” means the Armed Forces (Entry, Search and Seizure) Order 2006¹³;

• “commencement” means the date on which this Order comes into force;

• “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;

• “pre-commencement warrant” means a warrant to enter and search premises, issued under section 5 of the 2001 Act or Schedule 1 to the 2003 Order;

• “SDA civil offence” means an offence under section 70 of either of the 1955 Acts or section 42 of the 1957 Act;

• “SDA offence” means any of the following— an offence under Part 2 of either of the 1955 Acts; an offence under Part 1 of the 1957 Act; an offence under section 47K of that Act; an offence under section 18 or 20 of the Armed Forces Act 1991¹⁴ committed before commencement; an offence under any of sections 95 to 97 of the Reserve Forces Act 1996¹⁵ committed before commencement.

• “serious SDA offence” means— an SDA civil offence as respects which the corresponding civil offence is an indictable offence; or an SDA offence other than— an SDA civil offence; an offence which (by virtue of modifications of section 52 of the Act made by an order under section 380 of the Act) may be dealt with at a summary hearing; an offence under section 33(1)(a) of either of the 1955 Acts or section 11(a) of the 1957 Act (using violence against a superior officer); an offence under section 44(1) of either of the 1955 Acts or section 29(1) of the 1957 Act (damage to, and loss of, public or service property); an offence under section 62(1) of either of the 1955 Acts or section 35(1) of the 1957 Act (making of false documents); an offence under section 68 of either of the 1955 Acts or section 40 of the 1957 Act of attempting to commit an offence within paragraph (c), (d) or (e); an offence under section 68A of either of the 1955 Acts or section 41 of the 1957 Act of aiding and abetting or inciting the commission of an offence within paragraph (c), (d) or (e).

Stop and search by a service policeman

2

• (1) Article 3 is modified as follows.

• (2) For the purposes of article 3(1) a service policeman is to be treated as having detained a person or vehicle in exercise of the power conferred by section 75 of the Act if he has detained the person or the vehicle in exercise of the power conferred by section 2 of the 2001 Act.

• (3) For the purposes of article 3(5) a service policeman is to be treated as having completed a search of an unattended vehicle or anything in or on such a vehicle in exercise of the power conferred by section 75 if—

• (a) he has completed a search of the vehicle or thing in exercise of the power conferred by section 2 of the 2001 Act; and

• (b) he has not left a notice in accordance with article 3(5) of the 2003 Order.

Record of search by service policeman

3

• (1) Article 4 is modified as follows.

• (2) For the purposes of article 4(1) a service policeman is to be treated as having carried out a search in the exercise of the power conferred by section 75 of the Act if—

• (a) he has carried out a search in the exercise of the power conferred by section 2 of the 2001 Act; and

• (b) he has not made a record of the search in accordance with article 4 of the 2003 Order.

• (3) In article 4(7) and (8) references to a record of a search include a record made under article 4 of the 2003 Order.

Searches under section 76 of the Act

4

• (1) Article 5 is modified as follows.

• (2) For the purposes of article 5(1)—

• (a) an order given by an officer by virtue of section 4(1)(a) of the 2001 Act is to be treated as having been given under section 76(1) of the Act; and

• (b) an authorisation given by an officer by virtue of section 4(1)(b) of the 2001 Act is to be treated as an authorisation given under section 76(1) of the Act.

• (3) Article 5(4) and (5) apply where—

• (a) the relevant person was ordered or authorised to conduct a search of an unattended vehicle or anything in or on such a vehicle;

• (b) he has completed the search; and

• (c) he has not left a notice in accordance with articles 3(5) and 5 of the 2003 Order.

• (4) Article 5(6) applies where—

• (a) the relevant person has carried out a search pursuant to the order or authorisation; and

• (b) he has not made a record of the search in accordance with articles 4 and 5 of the 2003 Order.

• (5) In article 5(11) and (12) references to a record of a search include a record made under articles 4 and 5 of the 2003 Order.

• (6) In this paragraph the “relevant person” means the person given an order by virtue of section 4(1)(a) of the 2001 Act or an authorisation by virtue of section 4(1)(b) of that Act.

Search warrants – safeguards

5

• (1) Article 8 is modified as follows.

• (2) For the purposes of article 8(2) an entry on or search of premises under a warrant complies with articles 8 to 10 if—

• (a) as regards anything done before commencement, it complies with articles 8 to 10 of the 2003 Order; and

• (b) as regards anything done on or after commencement, it complies with articles 8 to 10 of this Order.

• (3) Article 8(6) applies in relation to a hearing of an application for a warrant which was made under section 5 of the 2001 Act or Schedule 1 to the 2003 Order.

• (4) Article 8(10) applies in relation to a pre-commencement warrant of which the copies required by article 8(7) of the 2003 Order have not been made.

• (5) In article 8(11)—

• (a) the reference to the copies of a warrant includes copies of a pre-commencement warrant which have been made under article 8(7) of the 2003 Order but have not been certified as copies in accordance with article 8(8) of that Order; and

• (b) the reference to the judge advocate who issues the warrant is to be read as a reference to the person who (as a judicial officer) issued the warrant.

Execution of warrants

6

• (1) Article 9 is modified in accordance with sub-paragraphs (2) to (4).

• (2) Except in article 9(2) and (13), references to a warrant include a pre-commencement warrant.

• (3) In article 9(3) the reference to a person authorised as mentioned in article 9(2) includes a person authorised by a pre-commencement warrant to accompany a service policeman executing the warrant.

• (4) In article 9(11) the reference to a service policeman executing a warrant includes a service policeman who has executed a pre-commencement warrant and has not endorsed it in accordance with article 9(9) of the 2003 Order.

• (5) A warrant returned to a judicial officer under article 9(10) of the 2003 Order shall—

• (a) be retained by him for at least 2 years from its return; or

• (b) be sent by him to the Judge Advocate General and retained by him for at least 2 years from its return to the judicial officer.

Safeguards and execution of warrants – further provisions

7

• (1) This paragraph applies where a service policeman has made an application for a warrant to enter and search premises under section 5 of the 2001 Act or Schedule 1 to the 2003 Order by live television or telephone links or similar arrangements.

• (2) Article 10(2) and (4) apply in relation to any warrant issued upon the application, subject to the following modifications.

• (3) In article 10(2)(b) and (c) the references to the judge advocate include the person who (as a judicial officer) issued the warrant.

• (4) In article 10(2)(d)—

• (a) the reference to the certified copies of the warrant made in accordance with article 8(10) and (11) includes certified copies made in accordance with article 8(7) and (8) of the 2003 Order; and

• (b) the reference to the transmission of a copy of the warrant in accordance with article 10(2)(b) includes the transmission of a copy of the warrant in accordance with article 10(2)(b) of the 2003 Order.

Search of premises after arrest

8

• (1) In articles 12 and 13—

• (a) references to an arrest under section 67 of the Act include an arrest under section 74 of either of the 1955 Acts or section 45 of the 1957 Act;

• (b) references to a serious service offence include a serious SDA offence.

• (2) Article 13(6) does not prohibit a service policeman—

• (a) from entering and searching any premises which an authorising officer (within the meaning of article 13 of the 2003 Order) has authorised him in writing under paragraph (4) of that article to enter and search, or

• (b) from seizing and retaining anything for which he may search any such premises, and

the reference in article 13(7) to a service policeman conducting a search without obtaining a written authorisation under paragraph (6) of that article is to be read as a reference to his conducting a search without obtaining such an authorisation and without having obtained an authorisation under article 13(4) of the 2003 Order.

• (3) Where a service policeman has conducted a search by virtue of article 13(5) of the 2003 Order but has not informed an authorising officer in accordance with article 13(6) of that Order that he has made the search, he shall as soon as is practicable inform an authorising service policeman that he has made the search.

• (4) In article 13(8)—

• (a) the reference to an authorising service policeman who authorises a search includes a person who (as an authorising officer within the meaning of article 13 of the 2003 Order) authorised a search under paragraph (4) of that article and has not made a record in accordance with paragraph (7) of that article; and

• (b) the reference to an authorising service policeman who is informed of a search under article 13(7) includes—

• (i) a person who (as an authorising officer within the meaning of article 13 of the 2003 Order) was informed of a search under paragraph (6) of that article and has not made a record in accordance with paragraph (7) of that article; and

• (ii) an authorising service policeman who is informed of a search under sub-paragraph (3).

Seizure, copying and retention

9

In articles 14, 16, 17 and 25 references to a service offence include an SDA offence.

10

• (1) Article 16 is modified as follows.

• (2) Where a person has seized anything in the exercise of a power conferred by or under Part 2 of the 2001 Act, and has been requested (whether before or after commencement) to provide any person with a record of what he seized but has not provided that person with such a record, article 16(1) and (2) apply as if the thing had been seized in the exercise of a power conferred by or under Part 3 of the Act.

• (3) In article 16(3) and (4)—

• (a) references to anything seized by an authorised person include anything seized in the exercise of a power conferred by or under Part 2 of the 2001 Act; and

• (b) references to a request for permission to be granted access to a thing, or for a photograph or copy of it, include a request made before commencement.

• (4) In article 16(5) the reference to a thing which a person has power to seize in exercise of a power conferred by or under Part 3 of the Act includes a thing which he had power to seize in exercise of a power conferred by or under Part 2 of the 2001 Act.

• (5) In article 16(6) the reference to a thing photographed or copied under paragraph (4)(b) includes a thing photographed or copied under article 16(4)(b) of the 2003 Order.

• (6) Where a thing has been photographed or copied under article 16(4)(b) of the 2003 Order, article 16(7) applies in relation to the photograph or copy.

11

• (1) Article 17 is modified as follows.

• (2) In paragraph (1)—

• (a) the reference to a power of seizure conferred by or under Part 3 of the Act includes a power of seizure conferred by or under Part 2 of the 2001 Act; and

• (b) the reference to a requirement made by virtue of article 14 or 15 includes a requirement made by virtue of article 14 or 15 of the 2003 Order.

• (3) The powers of seizure to which article 17(3) relates include—

• (a) those conferred by section 54(4)(a) of PACE as applied to investigations of offences conducted under either of the 1955 Acts or the 1957 Act, or to persons under arrest or in custody under any of those Acts, by virtue of an Order made under section 113(1) of PACE; and

• (b) those conferred by section 10(10) or (11) of the 2001 Act.

• (4) In article 17(4)—

• (a) the reference to a thing seized on the grounds that the person searched may use it to assist him to escape from service custody includes a thing seized on the grounds that that person might use it to assist him to escape from military, air-force or naval custody; and

• (b) the reference to a person who is no longer in service custody includes a person who was released from military, air-force or naval custody before commencement.

• (5) In article 17(6) the reference to a person authorised under article 9(2) includes a person authorised under article 9(2) of the 2003 Order.

Additional powers of seizure

12

• (1) Article 19 is modified as follows.

• (2) In article 19(1)(a) and article 19(3)(a)—

• (a) the reference to an authorisation under section 87 or 88 of the Act is to include an authorisation given under section 7 of the 2001 Act; and

• (b) the reference to a person finding anything includes a reference to a person having found anything before commencement.

• (3) In article 19(6) the reference to the powers of seizure conferred by or under Chapter 1 or 3 of Part 3 of the Act shall include a reference to the powers of seizure conferred by or under Part 2 of the 2001 Act, except sections 2, 4 and 7 of that Act.

Notice of exercise of power under article 19 or 20

13

• (1) Article 21 is modified as follows.

• (2) For the purposes of article 21 a person is to be treated as exercising a power of seizure conferred by article 19 if he—

• (a) has exercised a power of seizure conferred by article 3 of the 2006 Order; and

• (b) has not complied with article 5(1), (2) or (3) of that Order with respect to the seizure.

• (3) For the purposes of article 21 a person is to be treated as exercising a power of seizure conferred by article 20 if he—

• (a) has exercised a power of seizure conferred by article 4 of the 2006 Order; and

• (b) has not complied with article 5(4) of that Order with respect to the seizure.

Examination and return of property seized under article 19 or 20

14

• (1) Article 22 is modified as follows.

• (2) For the purposes of article 22 a thing is to be treated as seized under a power conferred by article 19 or 20 if—

• (a) it has been seized under a power conferred by article 3 or 4 of the 2006 Order; and

• (b) either the initial examination referred to in article 6(2) of that Order or the return of anything required under article 6(2) of that Order has not been completed before commencement.

• (3) Article 22(2) shall apply to ensure that its sub-paragraphs (a) to (d) are complied with in relation to the seized property, in so far as—

• (a) an initial examination under article 6(2) of the 2006 Order, or

• (b) the return of anything required under article 6(2) of that Order,

has not been completed before commencement.

Obligation to return items subject to legal privilege

15

• (1) Article 23 is modified as follows.

• (2) In article 23(2)(a) the reference to the power under section 76(1)(c), section 87(4) or section 88(4) of the Act includes a reference to—

• (a) the power under section 2(7) of the 2001 Act, exercised by virtue of section 4 of that Act by a person other than a service policeman; or

• (b) the power under section 7(3) of the 2001 Act.

• (3) The powers of seizure referred to in article 23(5) include—

• (a) the powers of seizure conferred by articles 3 and 4 of the 2006 Order; and

• (b) the powers of seizure conferred by Part 2 of the 2001 Act and by the 2003 Order.

Obligation to return excluded and special procedure material

16

In article 24(1) the reference to section 83 of the Act includes a reference to section 5 of the 2001 Act.

Authorised retention of property

17

In article 25 each of the references to a service offence includes a reference to an SDA offence.

Application of article 17 to property seized under Part 3

18

In article 26(1) the reference to article 19 or 20 includes a reference to article 3 or 4 of the 2006 Order.

Person to whom seized property is to be returned

19

In article 27(1)(a) the reference to any power of seizure conferred by Part 3 of the Act or under this Order includes a reference to—

• (a) any power of seizure conferred by article 3 or 4 of the 2006 Order; and

• (b) any power of seizure conferred by Part 2 of the 2001 Act or by the 2003 Order.

Application to a judge advocate

20

• (1) Article 28 is modified as follows.

• (2) Any reference to the judge advocate shall include a reference to the judicial officer (within the meaning of Part 2 of the 2001 Act) to whom an application has been made before commencement.

• (3) Where before commencement—

• (a) a person has applied to a judicial officer under article 12(2) of the 2006 Order, and

• (b) the judicial officer has neither ordered the return of any of the property to which the application relates nor dismissed the application,

the application shall be treated as an application under article 28(2) and any reference in article 28 to a judge advocate shall include a reference to the judicial officer.

• (4) Where before commencement—

• (a) a person has applied to a judicial officer under article 12(5)(b) or (c) of the 2006 Order, and

• (b) the judicial officer has not decided whether to give directions under article 12(5) of that Order,

the application shall be treated as an application under article 28(5)(b) or (c) (as appropriate), and any reference in article 28 to a judge advocate shall include a reference to the judicial officer.

• (5) In article 28(3)(d) and 28(5)(c)(i) the reference to article 19 or 20 includes a reference to article 3 or 4 of the 2006 Order.

• (6) The relevant powers of seizure for the purposes of article 28 include—

• (a) the powers of seizure conferred by articles 3 and 4 of the 2006 Order;

• (b) the powers of seizure conferred by Part 2 of the 2001 Act, except the power in section 7 of that Act;

• (c) the powers of seizure conferred by the 2003 Order, except the power under its article 15 in so far as it relates to section 7 of the 2001 Act.

Cases where duty to secure arises

21

• (1) Article 29 is modified as follows.

• (2) Where property has been seized in exercise, or purported exercise, of any power conferred by article 3 or 4 of the 2006 Order, but no duty has arisen under article 14 of that Order, the following modifications apply—

• (a) in article 29(1) the reference to article 19 or 20 includes a reference to article 3 or 4 of the 2006 Order;

• (b) in article 29(3)(a) the reference to Part 3 includes a reference to the 2006 Order;

• (c) the powers specified in article 29(4) include—

• (i) the powers of seizure under sections 5 and 10 of the 2001 Act;

• (ii) the powers of seizure conferred by the 2003 Order, except the power under its article 15 in so far as it relates to section 7 of the 2001 Order;

• (iii) in article 29(5)(c) the reference to paragraph (1)(d) or (4)(d) of article 21 includes a reference to paragraph (1)(d) or (4)(d) of article 5 of the 2006 Order.

• (3) Where immediately before commencement a duty to secure has effect under article 14 of the 2006 Order in relation to seized property, a duty to secure arises under article 30 in relation to that property.

The duty to secure

22

• (1) Article 30 is modified as follows.

• (2) Where paragraph 21(3) applies—

• (a) the reference in article 30(1) to the giving of the notice of the application under article 29(1) shall be treated as a reference to commencement; and

• (b) article 30(2) shall read “Paragraph (1) shall not have effect in relation to any time after the withdrawal of the notice of application under paragraph 13 of the 2006 Order with respect to which a duty to secure arose under article 14 of that Order.”

Use of inextricably linked property

23

• (1) Article 31 is modified as follows.

• (2) The reference in article 31(1) to a power of seizure conferred by or under Chapter 1 or 3 of Part 3 of the Act, except sections 87 or 88 of the Act, includes a reference to a power of seizure conferred by—

• (a) article 3 or 4 of the 2006 Order;

• (b) Part 2 of the 2001 Act, except the power under section 7 of that Act; or

• (c) the 2003 Order, except the power under its article 15 in so far as it relates to section 7 of the 2001 Act.

• (3) In article 31(6)(a) the reference to article 19 or 20 includes a reference to article 3 or 4 of the 2006 Order.

• (4) In article 31(8)(a) the reference to a warrant under section 83 of the Act includes a reference to a warrant under section 5 of the 2001 Act.

Relevant offences

24

For the purposes of section 84(2) of the Act, relevant offences shall include, in addition to the service offences listed in Schedule 3, an offence against any of—

• (a) section 24(1) of either of the 1955 Acts or section 2(1) of the 1957 Act (misconduct on operations);

• (b) section 25 of either of the 1955 Acts or section 3 of the 1957 Act (assisting an enemy);

• (c) section 26 of either of the 1955 Acts or section 4 of the 1957 Act (obstructing operations) which relates to an action or operation against an enemy;

• (d) section 30(a) or (b) of either of the 1955 Acts or section 5(a) or (b) of the 1957 Act (looting);

• (e) section 31 of either of the 1955 Acts or section 9 of the 1957 Act (mutiny);

• (f) section 32 of either of the 1955 Acts or section 10 of the 1957 Act (failure to suppress mutiny);

• (g) section 37 of either of the 1955 Acts or section 16 of the 1957 Act (desertion) where the accused intended to avoid serving overseas or service or any particular service when before the enemy;

• (h) section 48A of either of the 1955 Acts or section 19 of the 1957 Act (loss or hazarding a ship);

• (i) section 49 of either of the 1955 Acts or section 20 of the 1957 Act (dangerous flying etc);

• (j) section 68 of either of the 1955 Acts or section 40 of the 1957 Act of attempting to commit an offence within any of sub-paragraphs (a) to (i);

• (k) section 68A of either of the 1955 Acts or section 41 of the 1957 Act of aiding, abetting or inciting the commission of an offence within any of sub-paragraphs (a) to (i).

Review by a judge advocate of searches and seizure

25

• (1) Article 34 is modified as follows.

• (2) Where before commencement—

• (a) an officer has requested a judicial officer to undertake a review under section 8 of the 2001 Act, and

• (b) the judicial officer has not decided whether to make an order for the return or disposal of any of the property to which the review relates,

the review shall be treated as a review under section 89 of the Act and any reference in article 34 to a judge advocate shall include a reference to the judicial officer.

• (3) With respect to a review under section 89 of the Act carried out in relation to property seized before commencement—

• (a) in article 34(7)(b) the reference to section 87(4) or section 88(4) of the Act includes a reference to section 7(3) of the 2001 Act;

• (b) there is inserted at the end of article 34(7)(c) “and none of the conditions specified in section 5(4) of the 2001 Act applied”;

• (c) in article 34(7)(d) the reference to a power conferred by article 14 includes a reference to a power conferred by article 14 of the 2003 Order;

• (d) in article 34(7)(f) after “judge advocate” there is inserted “or a judicial officer within the meaning of Part 2 of the 2001 Act”;

• (e) in article 34(8)—

• (i) the reference to property seized during a search under section 87 of the Act includes a reference to property seized during a search by a service policeman under section 7 of the 2001 Act;

• (ii) in its sub-paragraph (a) after “in section 87(1)(b)” there is inserted “or section 7(1)(b) of the 2001 Act”; and

• (iii) in its sub-paragraph (b) after “in section 87(3) of the Act” there is inserted “or mentioned in sub-paragraph (i) or (ii) of section 7(1)(a) of the 2001 Act;

• (f) in article 34(9)—

• (i) after “section 88 of the Act” there is inserted “or seized by a person other than a service policeman during a search under section 7 of the 2001 Act”;

• (ii) in its sub-paragraph (a) after “in section 88(1)(b)” there is inserted “or section 7(2)(b) of the 2001 Act”; and

• (iii) in its sub-paragraph (b) after “in section 88(3) of the Act” there is inserted “or within section 7(2)(a) of the 2001 Act”;

• (g) in article 34(11) in the definitions of “authorising officer” and “retention” after “section 87 or 88 of the Act” there is inserted “or under section 7 of the 2001 Act”;

• (h) in article 34(12)—

• (i) in its sub-paragraph (a) the reference to section 96(1)(a) of the Act includes a reference to section 15(1)(a) of the 2001 Act;

• (ii) in its sub-paragraph (b) the reference to section 96(1)(b) of the Act includes a reference to section 15(1)(b) of the 2001 Act;

• (iii) in its sub-paragraph (c) the reference to section 96(1)(c) of the Act includes a reference to section 15(1)(c) of the 2001 Act.

Signed

Kevan Jones — Parliamentary Under Secretary of State — Ministry of Defence — 20th July 2009

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order deals primarily with the powers of search and of seizure granted to the service police under Part 3 of the Armed Forces Act 2006 (“the Act”). The main provisions in Parts 2 and 3 of the Order are, subject to modifications, equivalent to certain provisions of the Police and Criminal Evidence Act 1984 (“ PACE”) relating to powers of entry, search and seizure.

Articles 3 and 4 make provision which, subject to modifications, is equivalent to sections 2 and 3 of PACE. Article 3 makes provision as to the information that a service policeman must give to the person whom he proposes to search under section 75 of the Act. Article 3 also provides for the information that a service policeman must leave in an unattended vehicle which he has searched under section 75 of the Act. Article 4 concerns the records that must be made after a search under section 75 of the Act has been carried out.

Under article 5, articles 3 and 4 are applied to searches carried out by persons authorised to do so under section 76 of the Act as they apply to such searches carried out by service policemen under section 75 of the Act.

Article 6 and Schedule 1 make provision which, subject to modifications, is equivalent to Schedule 1 to PACE. They deal with access to “excluded material” and “special procedure material” as defined in PACE.

Article 7 enables a service policeman who is making an application to a judge advocate for a search warrant under section 83 of the Act or under Schedule 1 to this Order, or for an order under Schedule 1, to do so by live television or telephone links or similar arrangements.

Articles 8 and 9 make provision which, subject to modifications, is equivalent to sections 15 and 16 of PACE. There are further modifications in article 10. Those articles relate to the application for and execution of search warrants issued under section 83 of the Act or Schedule 1 to this Order.

Article 11 and Schedule 2 make provision as to the oath or affirmation to be administered to a service policeman when he is required under article 8(6) to answer questions on oath.

Article 12 makes provision which, subject to modifications, is equivalent to section 32 of PACE, in so far as that section relates to the entry and search without a warrant of premises in which a person was when or immediately before he was arrested. Article 13 makes provision which, subject to modifications, is equivalent to section 18 of PACE. That article relates to the entry and search without a warrant of premises occupied by an arrested person.

Articles 14 to 17 make provision which, subject to modifications, is equivalent to sections 19 to 21 and 22(1) to (4) of PACE. Those articles relate to the general power of seizure from searched premises, the powers of seizure in respect of computerised information, and access to, copying and retention of anything seized under the provisions of this Order or Part 3 of the Act.

Part 2 of the Criminal Justice and Police Act 2001 (c.16) makes provision as to civilian police powers of search and seizure, and Part 4 of this Order makes related provision in relation to the armed forces’ system of justice. The provisions relate to circumstances in which it is not reasonably practicable to establish at the time of a search of premises or of a person which material can and cannot be seized. For example, material that a service policeman conducting the search is entitled to seize may be contained within a larger collection of material some of which he may not be entitled to seize. Material held on computers may present particular difficulties in this respect. The main provisions of Part 4 are as follows.

Article 19 permits material to be removed from premises being searched where there are reasonable grounds for believing that the material is, or contains, material which a service policeman would be entitled to seize. It also permits the seizure of material which the service policeman would be entitled to seize, but it is not reasonably practicable for it to be separated on the premises from other material. The article does not apply to searches of premises being carried out under the authority of a commanding officer under section 87 or 88 of the Act (other searches of premises require the authority of a judge advocate). The equivalent provision in the Criminal Justice and Police Act 2001 is section 50.

Article 20 makes, in relation to material found by a service policeman when lawfully searching an individual, provision broadly equivalent to that in section 51 of the Criminal Justice and Police Act 2001.

Under article 21, where material is seized in exercise of the power under article 19, a notice must generally be given to the occupier of the premises or (if the occupier is absent) to the person in charge of the premises. If no such person is present, a notice must be attached prominently to the premises. The notice must state what has been seized and other specified information. The equivalent provision in the Criminal Justice and Police Act 2001 is section 52.

Article 22 requires that, where material is seized under article 19 or 20, it must be examined as soon as reasonably practicable and property whose retention is not authorised must be returned as soon as reasonably practicable. The equivalent provision in the Criminal Justice and Police Act 2001 is section 53.

Under article 23 seized property which is subject to legal privilege and (under article 24) seized property which consists of or includes excluded or special procedure material, must, subject to limited exceptions, be returned as soon as reasonably practicable. Article 27 provides for the person to whom property must be returned. This will be the person from whom the property was seized, unless the person obliged to return the property is satisfied that someone else has a better right to the property. The equivalent provisions under the Criminal Justice and Police Act 2001 are, respectively, sections 54, 55 and 58.

Article 25 provides for the retention of seized property where there are reasonable grounds for believing either that it is the proceeds of an offence or evidence of an offence and (in either case) that it is necessary to retain it to prevent its being concealed, lost, damaged, altered or destroyed. The equivalent provision under the Criminal Justice and Police Act 2001 is section 56.

Article 28 permits a person with an interest in property seized under a power under armed forces legislation (including under article 19 or 20 of this Order) to apply to a judge advocate for its return. Article 28 does not apply to seizures under sections 87 or 88 of the Act (under section 89 of the Act such seizures are subject to automatic review by a judge advocate). The equivalent provision under the Criminal Justice and Police Act 2001 is section 59.

Where an application is made under article 28 stating that the property is, or contains, property subject to legal privilege, special procedure material or excluded material, a duty generally arises to secure the seized material from being examined, copied or used (articles 29 and 30). There are exceptions where the applicant consents or a judge advocate so directs. Under article 31 a similar exclusion of examination, copying and use applies (subject to the consent of the person from whom it was seized) to seized property which would have to be returned but for the fact that it is not reasonably practicable to separate it from property which can be retained. Section 62 of the Criminal Justice and Police Act 2001 is equivalent to article 31.

Article 33 specifies the service offences which are “relevant offences”; these are offences in respect of which a judge advocate may issue a search warrant under section 83 of the Act.

Article 34 prescribes the powers and duties of a judge advocate when conducting a review under section 89 of the Act of a search authorised by an officer under section 87 or 88 of the Act and of the seizure and retention of anything seized and retained during the search. The judge advocate shall adopt such procedures at the review as he sees fit, although he must take into account representations made by certain people, including the officer who authorised the search any the occupier of the premises which were searched.

Under article 34 the judge advocate must order the return or disposal of seized property if he is satisfied that it is subject to legal privilege. The judge advocate must also order the return or disposal of seized property if he is satisfied as to any of the grounds in article 34(7), unless he is satisfied that it would be in the interests of justice to permit retention of the property. The judge advocate may give such directions as he sees fit as to the return or disposal of the property.

Article 35 and Schedule 4 make transitional provisions.

Footnotes