LegalizeThe Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 2009
Made: 14th April 2009
Laid before Parliament: 20th April 2009
Coming into force: 31st October 2009
The Secretary of State, in exercise of the powers conferred by section 39(1) of the Criminal Justice and Public Order Act 1994 [^f00001], makes the following Order:
Citation, commencement and interpretation
1
- (1) This Order may be cited as the Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 2009, and shall come into force on 31st October 2009.
- (2) In this Order—
- “the Act” means the Criminal Justice and Public Order Act 1994;
- “the 1997 Order” means the Criminal Justice and Public Order Act 1994 (Application to the Armed Forces ) Order 1997[^f00002]; and
- “the 2006 Order” means the Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 2006 [^f00003].
- (3) For the purposes of this Order any reference to a person being charged with an offence in the provisions of the Act specified in column 1 of Schedule 1 has the same meaning as in Part 5 of the Armed Forces Act 2006[^f00004].
Application of the Act
2
- (1) The provisions of the Act which are specified in column 1 of Schedule 1 shall apply to the proceedings to which this Order applies, subject to the modifications specified in column 2 of that Schedule.
- (2) This Order applies to proceedings before the—
- (a) Service Civilian Court;
- (b) Summary Appeal Court;
- (c) Court Martial; and
- (d) Court Martial Appeal Court.
- (3) Schedule 2 sets out sections 34 to 38 of the Act as modified by the provisions of this Order, as they apply to the proceedings specified at paragraph (2).
Revocation
3
The 1997 Order and the 2006 Order are revoked.
Transitional and transitory provisions
4
- (1) In relation to any time before commencement references in the Act as applied by this Order to an accused’s being charged with a service offence are to be read as references to an allegation of an offence being reported to the accused’s commanding officer in the form of a charge under section 76(1) of the Army Act 1955[^f00005], section 76(1) of the Air Force Act 1955[^f00006] or section 52B(1) of the Naval Discipline Act 1957[^f00007].
- (2) In this article “commencement” means the date on which this Order comes into force.
5
Until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005[^f00008] comes into force the modification to section 38(1) of the Act in column 2 of Schedule 1 that refers to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland.
SCHEDULE 1 — APPLICATION AND MODIFICATION OF THE ACT
| Column 1 Provisions applied | Column 2 Modifications |
|---|---|
| In section 34— subsection (1) | for the words “an offence” substitute the words “a service offence”; in paragraph (a) for the word “constable” substitute the words “service policeman”; in paragraph (a) before the word “offence” wherever it occurs insert the word “service”; for paragraph (b) substitute the following— b on being informed by a service policeman that the case would be referred either to the Director of Service Prosecutions or to the person’s commanding officer under section 116(2) or (3) of the Armed Forces Act 2006 (as the case may be), failed to mention any such fact ; for the words “questioned, charged or informed” substitute “questioned or informed”; |
| subsection (2), except paragraphs (a) and (b) | in paragraph (d) omit the words “or jury”, and before the word “offence” insert “service”; |
| subsection (2A) | for the word “solicitor” substitute the words “legal representative”, and for the words “questioned, charged or informed” substitute “questioned or informed”; |
| subsections (3) and (5) | |
| subsection (6) | for the words in subsection (6) substitute the words “This section does not apply in relation to a failure to mention a fact if the failure occurred before the coming into force of the 1997 Order”; |
| In section 35— | |
| subsection (1) | after the word “trial” substitute “or appellate proceedings”; |
| before the word “offence” insert “service”; | |
| subsection (2) | omit the words “(in the case of proceedings on indictment, in the presence of the jury)”; |
| omit the words “or jury”; | |
| subsection (3) | omit the words “or jury”; |
| before the word “offence” insert “service”; | |
| subsections (4),(5) | |
| In section 36— | |
| subsection (1) | for the word “constable” wherever it occurs substitute the words “service policeman”; in paragraph (b) for the words “an offence” substitute “a service offence”; type=start time=1285663724940after paragraph (d) before the word “offence”type=end time=1285663724940 insert “service”; |
| subsection (2), except paragraphs (a) and (b) | in paragraph (d) omit the words “or jury” and before the word “offence” insert “service”; |
| subsection (3) | |
| subsection (4) | for the word “constable” substitute the words “service policeman”; |
| subsection (4A) | for the word “solicitor” substitute the words “legal representative”; |
| subsection (6) | |
| subsection (7) | for the words in subsection (7) substitute the words “This section does not apply in relation to a failure or refusal which occurred before the coming into force of the 1997 Order”; |
| In section 37— | |
| subsection (1) | for the word “constable” wherever it occurs substitute the words “service policeman”; for the words “the offence” wherever they occur substitute the words “the service offence”; |
| subsection (2), except paragraphs (a) and (b) | in paragraph (d) omit the words “or jury” and before the word “offence” insert “service”; |
| subsection (3) | for the word “constable” substitute the words “service policeman”; |
| subsection (3A) | for the word “solicitor” substitute the words “legal representative”; |
| subsection (5) | |
| subsection (6) | for the words in subsection (6) substitute the words “This section does not apply in relation to a failure or refusal which occurred before the coming into force of the 1997 Order”; |
| In section 38— | |
| subsection (1) | omit the definition of “legal representative”; and insert the following definitions in the appropriate places— “appellate proceedings” means any of— the Summary Appeal Court hearing an appeal from a summary hearing; the Court Martial hearing an appeal from the Service Civilian Court; or the Court Martial Appeal Court hearing an appeal from the Court Martial; “legal representative ” means (a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990[^f00009]; (b) an advocate or solicitor in Scotland; (c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or (d) a person having in any of the Channels 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 subject to punishment or disability for a breach of professional rules; “service policeman” has the same meaning as in section 375(1) of the Armed Forces Act 2006; “the 1997 Order” means the Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 1997 (S.I. 1997/16). |
| subsection (2) | for the words “an offence” there shall be substituted “a service offence” and after the word “other” there shall be inserted “service”; |
| subsection (2A) | after the words “a police station;” omit the word “or” and after paragraph (b) insert the words “(c) any building or part of the building, any structure, or any room (whetheron land or on a ship) which is used by a service policeman for the performance of his duties”; |
| subsection (3) | the omission of the words “have the proceedings against him transferred to the Crown Court for trial,” and for the words “an offence” there shall be substituted “a service offence”; |
| subsections (5) and (6) |
SCHEDULE 2
Signed
Kevan Jones — Parliamentary Under Secretary of State — Ministry of Defence — 14th April 2009
Explanatory note
(This note is not part of the Order)
EXPLANATORY NOTE
The Criminal Justice and Public Order Act 1994 at sections 34 to 37 (with interpretative provisions at section 38), introduced measures which allow a court to draw such inferences as appear proper from the failure or refusal of an accused person to provide information in defined circumstances. The Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 1997 (“the 1997 Order”) and the Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 2006 (“the 2006 Order”), applied those provisions, with modifications, to proceedings set out in the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 (“the Service Discipline Acts”). The Service Discipline Acts have been repealed and replaced with the Armed Forces Act 2006. This Order revokes the 1997 Order and the 2006 Order and applies, with modifications, sections 34 to 38 of the 1994 Act to the proceedings specified in article 2(2), to reflect changes in terminology and procedure under the 2006 Act.
The relevant provisions of the 1994 Act have the following effect:
Section 34 applies when an accused fails to mention facts when questioned under caution or when he is charged.
Section 35 makes provision for the effect of an accused’s silence at trial.
Section 36 applies when an accused is arrested and fails or refuses to account for objects, substances or marks (either on his person or clothing or footwear, or in the place where he is arrested, or otherwise in his possession).
Section 37 applies when an accused is arrested and fails or refuses to account for his presence at a particular place.
Section 38 is an interpretation and savings provision which relates to sections 34 to 37.
Schedule 2 to this Order, which is for ease of reference and information purposes only, reflects sections 34 to 38 of the 1994 Act as modified by Schedule 1, as they apply to the proceedings specified in article 2(2).
Footnotes
[^f00001]: 1994 c. 33. Section 39 of the Act is amended by paragraph 130 of Schedule 16 to the Armed Forces Act 2006.
[^f00002]: S.I. 1997/16, as amended by the 2006 Order.
[^f00003]: S.I. 2006/2326
[^f00004]: 2006 c. 52
[^f00005]: 1955 c. 18
[^f00006]: 1955 c. 19
[^f00007]: 1957 c. 53
[^f00008]: 2005 c. 4
[^f00009]: 1990 c. 41. Subsection (6) of section 71 of the Courts and Legal Services Act 1990 was substituted by the Access to Justice Act 1999 (c. 22), section 32, Schedule 6, paragraphs 4 and 9. Subsections (7) and (8) of section 71 of the 1990 Act were repealed by section 106. Schedule 15, Part 2, of the 1999 Act. Prospective amendments to section 71 of the 1990 Act are made to subsections (1) and (3) by the Constitutional Reform Act 2005 (c. 4), section 59(5). Schedule 11, part 2, paragraph 4(1), (3). Prospective amendments are made to subsections (4) and (6) and a new subsection (6A) is inserted into section 71 of the 1990 Act by the Legal Services Act 2007 (c. 29), section 208(1), Schedule 21, paragraphs 83 and 94(a), (b) and (c).
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