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Armed Forces Act 2016

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Armed Forces Act 2016

2016 c. 21

An Act to continue the Armed Forces Act 2006; to make provision about service discipline; to make provision about war pensions committees established under section 25 of the Social Security Act 1989; to make provision about Ministry of Defence fire-fighters; and for connected purposes.

Enacted[12th May 2016]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Duration of Armed Forces Act 2006

F11 Duration of Armed Forces Act 2006

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alcohol and drugs

I2I32 Commanding officer's power to require preliminary alcohol and drugs tests

1 In the heading of Chapter 3A of Part 3 of AFA 2006 (testing for alcohol and drugs on suspicion of offence), for “on suspicion of offence” substitute “ in connection with a suspected offence or accident ”.
2 In section 93A of AFA 2006 (commanding officer's power to require preliminary tests)—
a before subsection (1) insert—
,
b in subsection (1), for “This section applies” substitute “ The first situation is ”,
c in subsection (1)(a), for “relevant offence” substitute “ safety-critical duty offence ”,
d in subsection (1)(b), for “a relevant” substitute “ such an ”,
e omit subsection (2),
f in subsection (3), for “This section also applies” substitute “ The second situation is ”,
g after subsection (3) insert—
, and
h in subsection (4)—
i at the beginning insert “ Where this section applies, ”, and
ii for “subsection (1) or (3) (“the suspected person”)” substitute “ subsection (1), (3), (3A), (3B) or (3C) (“the affected person”) ”.
3 After that section insert—
4 In section 93B of AFA 2006 (preliminary breath test)—
a in subsection (1), at the beginning insert “ In a situation described in section 93A(1) or (3), ”,
b in subsection (1)(a), for “suspected” substitute “ affected ”,
c after subsection (1) insert—
, and
d in subsection (3), for “93A(2)” substitute “ 93A(1)(a) ”.
5 In section 93C of AFA 2006 (preliminary impairment test), in subsection (1)(a) and (b), for “suspected” substitute “ affected ”.
6 In section 93D of AFA 2006 (preliminary drug test), in subsection (1)(a), for “suspected” substitute “ affected ”.
7 In section 93I of AFA 2006 (definitions for the purposes of Chapter 3A of Part 3), in the definition of “safety-critical duty”, after “93A(1)” insert “ , 93AA(6)(a) ”.
8 In section 373 of AFA 2006 (regulations etc)—
a in subsection (2) (regulations made by Defence Council), after “36,” insert “ 93AA, ”, and
b in subsection (3)(d) (affirmative procedure), after “20A,” insert “ 93AA(2), ”.

Investigation and charging

I4I73 Duty of service policeman following investigation

1 In section 116(2) of AFA 2006 (cases that must be referred to the Director of Service Prosecutions following investigation by service or civilian police)—
a in paragraph (a), for “a Schedule 2 offence” substitute “ a service offence that is not a CO offence ”, and
b in paragraph (b), for “any other service offence” substitute “ a service offence that is a CO offence ”.
2 In section 116(3) of AFA 2006 (cases that must be referred to the commanding officer following investigation by service or civilian police)—
a omit “and” at the end of paragraph (a), and
b after paragraph (b) insert
.
3 In section 116(4) of AFA 2006 (obligation to consult the Director of Service Prosecutions about certain cases)—
a in paragraph (a), for “a Schedule 2 offence has or might have been committed” substitute “ a person has committed, or might have committed, a service offence which is not one that may be dealt with at a summary hearing (see section 53) ”, and
b in the words after paragraph (b), at the end insert “ or section 117(5) ”.
4 In section 116(5) of AFA 2006 (interpretation of section 116)—
a for “For the purposes of subsections (2) and (3)” substitute
, and
b at the end insert
5 In section 117 of AFA 2006 (section 116: position where investigation is of multiple offences or offenders), for subsection (3) substitute—
6 In section 118 of AFA 2006 (duty of service policeman to notify commanding officer of referral to the Director of Service Prosecutions)—
a in subsection (1), after “116(2)” insert “ or 117(5) ”,
b for subsection (3) substitute—
,
c in subsection (4)(a), for “section 116(5)” substitute “ section 116(5)(a) ”,
d in subsection (4), after paragraph (a) insert—
, and
e omit subsection (5).
7 In section 121(1) of AFA 2006 (power of the Director of Service Prosecutions to direct bringing of charges etc), after paragraph (a) (but before “or”) insert—
.
8 In Schedule 2 to AFA 2006 (Schedule 2 offences for the purposes of Part 5), in the shoulder reference, for “Sections 113, 116” substitute “ Section 113 ”.
9 In consequence of the substitution of section 117(3) of AFA 2006, omit paragraph 5(2) of Schedule 3 to the Armed Forces Act 2011.

I5I84 Power of commanding officer to charge etc

1 In section 120 of AFA 2006 (power of commanding officer to charge etc), in subsection (5) (referral of certain cases to the Director of Service Prosecutions)—
a for the words before paragraph (a) substitute “ Where an officer has referred a case under subsection (3), the officer must also refer to the Director of Service Prosecutions any other case— ”, and
b omit the words following paragraph (b).
2 In section 121(1) of AFA 2006 (power of the Director of Service Prosecutions to direct bringing of charges etc), in paragraph (b), after “120(3)” insert “ or (5) ”.

I6I95 Power of Director of Service Prosecutions to charge etc

1 In section 121 of AFA 2006 (power of the Director of Service Prosecutions to direct bringing of charges etc)—
a in subsection (1), for “subsections (2) to (5)” substitute “ subsections (1A) to (5) ”,
b after subsection (1) insert—
,
c in subsection (4), after “appropriate” insert “ to bring a charge under subsection (1A) or ”,
d in subsection (5), after “could” insert “ bring a charge under subsection (1A) or ”, and
e in the heading, after “to” insert “ charge or ”.
2 In section 122 of AFA 2006 (charges brought at the direction of the Director of Service Prosecutions)—
a in subsection (2), for “brought as a result of such a direction” substitute “ brought by the Director of Service Prosecutions (“the Director”) under section 121(1A) or by an officer as a result of a direction under section 121(2) ”,
b in subsection (2)(a), for “the Director of Service Prosecutions allocated it (under section 121(3))” substitute “ the Director allocated it (under section 121(1B) or (3)) ”, and
c in the heading, after “brought” insert “ by or ”.
3 In the Youth Justice and Criminal Evidence Act 1999—
a in section 45A(15)(b) (reporting restrictions: when proceedings in a service court commence), for “section 122” substitute “ section 121(1A) or 122 ”, and
b in paragraph 6(6)(a) of Schedule 7 (reporting restrictions: transitional provision), for “section 122” substitute “ section 121(1A) or 122 ”.

Suspended sentences of service detention

I106 Period for which sentence of service detention may be suspended

1 In section 190 of AFA 2006 (suspension of sentence of service detention), for subsection (2) (length of period of suspension) substitute—
2 The amendment made by this section applies only in relation to an order relating to a sentence of service detention for an offence committed on or after the day on which it comes into force.
3 Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (2) to have been committed on the first of those days.

Offenders assisting investigations and prosecutions

I137 Immunity from prosecution

In AFA 2006, after Part 12 insert—

I148 Undertakings as to use of evidence

After section 304A of AFA 2006 insert—

I159 Reduction in sentence

After section 304B of AFA 2006 insert—

I11I1610 Review of sentence following offer of assistance

After section 304C of AFA 2006 insert—

I12I1711 Review of sentence following failure to assist

After section 304D of AFA 2006 insert—

I1812 Supplementary provision

After section 304E of AFA 2006 insert—

Armed Forces Act 2006 outside the UK

13 AFA 2006: Isle of Man and British overseas territories

1 On the day on which this section comes into force (“the commencement day”), AFA 2006 comes into force in—
a the Isle of Man, and
b the British overseas territories except Gibraltar,
(that Act having previously expired there under section 382 of that Act as originally enacted).
2 The reference in subsection (1) to AFA 2006 is a reference to that Act as it is in force in England and Wales, Scotland and Northern Ireland immediately before the commencement day.
3 In section 384(2)(b) of AFA 2006 (extent to British overseas territories), at the end insert “ except Gibraltar ”.
4 The Schedule to this Act makes further provision about AFA 2006 and the Isle of Man and British overseas territories.

Repeals relating to discharge for homosexual acts

14 Repeals relating to discharge for homosexual acts

1 The Criminal Justice and Public Order Act 1994 is amended as follows.
2 In section 146(4) (homosexual acts as grounds for discharge from the armed forces etc), omit the words “discharging a member of Her Majesty's armed forces from the service or”.
3 In section 147(3) (homosexual acts as grounds for discharge from the armed forces etc: Northern Ireland), omit the words “discharging a member of Her Majesty's armed forces from the service or”.

War pensions committees

I115 War pensions committees and armed and reserve forces compensation schemes

1 Section 25 of the Social Security Act 1989 (establishment and functions of war pensions committees) is amended as follows.
2 After subsection (1) insert—
3 In subsection (2)—
a omit the words from the beginning to the second “and”,
b for “it shall be their function” substitute “ it is a function of a committee ”,
c in paragraph (a), for “connected with war pensions or affecting war pensioners in their area and, where they think” substitute “ connected with war pensions or AFCS benefits or affecting people in its area who are war pensioners or AFCS benefit recipients and, where it thinks ”,
d in paragraph (b), for “to them by persons receiving or claiming war pensions and, if they think” substitute “ to it by people receiving or claiming war pensions or AFCS benefits and, if it thinks ”,
e in paragraph (c)—
i for “them” substitute “ it ”, and
ii for “they” substitute “ it ”, and
f in paragraph (d), for “war pensioners in their area” substitute “ people in its area who are war pensioners or AFCS benefit recipients ”.
4 After subsection (3) insert—
5 In subsection (4), before the definition of “war pension” insert—
.

Ministry of Defence fire-fighters

16 Powers of Ministry of Defence fire-fighters in an emergency

1 A Ministry of Defence fire-fighter who is authorised in writing by the Secretary of State for the purposes of this section may do anything the fire-fighter reasonably believes to be necessary—
a if the fire-fighter reasonably believes a fire to have broken out or to be about to break out, for the purpose of extinguishing or preventing the fire or protecting life or property;
b if the fire-fighter reasonably believes a road traffic accident to have occurred, for the purpose of rescuing people or protecting them from serious harm;
c for the purpose of preventing or limiting damage to property resulting from action taken as mentioned in paragraph (a) or (b).
2 In particular, a fire-fighter may under subsection (1)—
a enter premises or a place, by force if necessary, without the consent of the owner or occupier of the premises or place;
b move or break into a vehicle without the consent of its owner;
c close a road;
d stop and regulate traffic;
e restrict the access of persons to premises or a place.
3 In this section—
  • “Ministry of Defence fire-fighter” means a person whose duties as an employee or servant of the Crown, or as an employee of a government contractor, include—
    1. extinguishing fires on defence property,
    2. protecting life and property in the event of a fire on defence property, and
    3. rescuing people or protecting them from serious harm in the event of a road traffic accident on defence property;
  • “defence property” means property used—
    1. for the purposes of the Secretary of State with responsibility for defence,
    2. for the purposes of Her Majesty's forces (within the meaning of the Armed Forces Act 2006) or a visiting force, or
    3. for other defence purposes;
  • “government contractor” means a person who provides services to the Secretary of State with responsibility for defence under contract (and includes a sub-contractor);
  • “road”—
    1. in England and Wales means a highway;
    2. in Scotland has the meaning given in Part 4 of the New Roads and Street Works Act 1991;
    3. in Northern Ireland has the meaning given by Article 2(2) of the Road Traffic Regulation (Northern Ireland) Order 1997 (N.I. 2);
  • “visiting force” means a body, contingent or detachment of the forces of a country that is a visiting force for the purposes of any provision of the Visiting Forces Act 1952.
4 The Emergency Workers (Obstruction) Act 2006 is amended as follows.
5 In section 1(2) (obstructing or hindering certain emergency workers)—
a after paragraph (a) insert—
, and
b in paragraph (b), after “paragraph (a)” insert “ or (aa) ”.
6 In section 7 (extent etc) at the end insert—

17 Minor amendments

1 In section 102(4) of the Transport Act 1968 (exemption for fire brigades etc to rules on drivers' hours), at the end insert “ or for purposes relating to the functions of Ministry of Defence fire-fighters (as defined in section 16 of the Armed Forces Act 2016) ”.
2 In section 15(7)(a)(i) of the Greater London Council (General Powers) Act 1974 (exception for fire and rescue vehicles to offence of parking on footways etc), at the end insert “ or for purposes relating to the functions of Ministry of Defence fire-fighters (as defined in section 16 of the Armed Forces Act 2016) ”.
3 In section 62(2)(a) of the Control of Pollution Act 1974 (exception for fire brigades etc to prohibition on use of loud-speakers in streets), after “purposes” insert “ or for purposes relating to the functions of Ministry of Defence fire-fighters (as defined in section 16 of the Armed Forces Act 2016) ”.
4 In section 135(1) of the Merchant Shipping Act 1995 (restrictions on transfer of oil at night), for “employer of fire-fighters” substitute “ person who employs or engages fire-fighters ”.

Final provisions

18 Meaning of “AFA 2006”

In this Act “AFA 2006” means the Armed Forces Act 2006.

19 Commencement and transitional provision

1 The provisions of this Act come into force on such day as the Secretary of State may appoint by regulations, subject to subsections (2) and (3).
2 The following come into force on the day on which this Act is passed—
a section 1 (duration of AFA 2006);
b section 13 and the Schedule to this Act (AFA 2006 outside the UK);
c section 18, this section and sections 20 to 22.
3 The following come into force at the end of the period of two months beginning with the day on which this Act is passed—
a section 14 (repeals relating to discharge for homosexual acts);
b sections 16 and 17 (Ministry of Defence fire-fighters).
4 The Secretary of State may by regulations make transitional, transitory or saving provision in connection with the coming into force of a provision of this Act.
5 Regulations under this section—
a are to be made by statutory instrument, and
b may make different provision for different purposes.
6 In section 380(8A) of AFA 2006 (power to amend orders that made transitional provision in connection with the coming into force of that Act), at the end insert “ (whether the amendment relates to a subject already dealt with in the earlier order or a new subject) ”.

20 Extent in the United Kingdom

1 This Act extends to England and Wales, Scotland and Northern Ireland, subject to subsection (2).
2 The amendments made by the following sections have the same extent as the provisions to which they relate—
a section 14 (repeals relating to discharge for homosexual acts);
b section 17 (Ministry of Defence fire-fighters: minor amendments).

21 Extent in the Channel Islands, Isle of Man and British overseas territories

1 The power under section 384(1) of AFA 2006 may be exercised so as to extend to any of the Channel Islands any amendment or repeal made by this Act of a provision of AFA 2006 (with or without modifications).
2 This Act, with the exception of sections 5(3), 14, 15, 16, 17 and 20, extends to—
a the Isle of Man, and
b the British overseas territories except Gibraltar.
3 The power under section 384(2) of AFA 2006 may be exercised so as to modify any provision of AFA 2006 as amended by this Act as it extends to the Isle of Man or a British overseas territory other than Gibraltar.

22 Short title

This Act may be cited as the Armed Forces Act 2016.

SCHEDULE 

ISLE OF MAN AND BRITISH OVERSEAS TERRITORIES: FURTHER PROVISION

Section 13

The commencement day

1In this Schedule “the commencement day” has the same meaning as in section 13.

Pre-commencement amendments of AFA 2006 and provisions applied by AFA 2006

2
1 In section 384(2) of AFA 2006 (as amended by section 13(3) of this Act) (extent to the Isle of Man and British overseas territories other than Gibraltar) the reference to AFA 2006 includes—
a a pre-commencement amendment of AFA 2006,
b a provision of, or made under, an Act that is applied (by whatever words) by AFA 2006 by virtue of a pre-commencement amendment of AFA 2006, and
c a pre-commencement amendment or repeal of a provision of, or made under, an Act that is applied (by whatever words) by or under AFA 2006 (whether by virtue of a pre-commencement amendment of AFA 2006 or otherwise).
2 For the purposes of this Schedule, an amendment or repeal is a “pre-commencement” amendment or repeal if it is contained in an Act or instrument passed or made before the commencement day (whether or not it is in force on that day).

Instruments made under AFA 2006 or under Acts applied by AFA 2006

3
1 An instrument made under AFA 2006, or under a provision of an Act applied by AFA 2006, that is in force in England and Wales immediately before the commencement day—
a extends to the Isle of Man and the British overseas territories except Gibraltar, and
b comes into force there on the commencement day,
subject to sub-paragraph (2).
2 Regulations made under section 322 of AFA 2006 (financial penalty enforcement orders) do not extend to a British overseas territory by virtue of sub-paragraph (1).

Removal of powers to extend provisions to Gibraltar

4
1 The powers under the sections listed in sub-paragraph (2) (powers to extend provisions outside the United Kingdom) may not be exercised so as to provide for a pre-commencement amendment or repeal described in paragraph 2(1)(a) to (c) to extend to Gibraltar.
2 Those provisions are—
a section 33(1) of the Armed Forces Act 2011;
b section 61(21) of the Crime and Courts Act 2013;
c section 23(5) of the Offender Rehabilitation Act 2014;
d section 5(3) of the Armed Forces (Service Complaints and Financial Assistance) Act 2015;
e section 97(5) of the Criminal Justice and Courts Act 2015.

Effect of paragraphs 2 to 4

5
1 Paragraphs 2 and 3 have effect despite any provision in an Act or instrument passed or made before the commencement day which provides (by whatever words) that a provision does not extend to the Isle of Man or a British overseas territory other than Gibraltar (including any provision disapplying section 385 of AFA 2006), subject to sub-paragraph (2).
2 Subsection (2) of section 384 of AFA 2006 continues to have effect subject to subsection (3) of that section (extent of paragraph 5(ba) of Schedule 9 to that Act).
3 Paragraphs 2 and 3 have effect despite any provision in an Act or instrument passed or made before the commencement day which provides (by whatever words) that a provision extends to Gibraltar.
4 The references in paragraph 2(1) to a pre-commencement amendment or pre-commencement repeal include any provision which brings the amendment or repeal into force and any provision which confers (by whatever words) a power by order or regulations to make provision about, or in connection with, the coming into force of the amendment or repeal.
5 Nothing in paragraph 2 affects whether references to AFA 2006, other than the reference in section 384(2) of that Act, include an amendment, repeal or provision described in that paragraph.
6 Paragraph 3 does not prevent the exercise of any power (whether express or implied) to make further instruments amending or revoking an instrument described in that paragraph (including the instrument as it extends to the Isle of Man and British overseas territories other than Gibraltar).

Consequential amendments of AFA 2006

6AFA 2006 is amended as follows.
7
1 Section 314 (arrest by civilian police of deserters and absentees without leave) is amended as follows.
2 In subsection (1), for “An officer of a UK police force or British overseas territory police force” substitute “ A civilian policeman ”.
3 After subsection (4) insert—
4 In subsection (5)(e), at the end insert “ other than Gibraltar ”.
8
1 Section 315 (deserters and absentees without leave surrendering to civilian police) is amended as follows.
2 Omit subsection (5).
3 In subsection (6), for “ “relevant territory” has” substitute “ “civilian policeman” and “relevant territory” have”.
9
1 Section 318 (arrest by civilian police of persons unlawfully at large) is amended as follows.
2 In subsection (1)(a), for “an officer of a UK police force or British overseas territory police force” substitute “ a civilian policeman ”.
3 At the end insert—
10In section 340(1)(b) (restriction on aliens in regular forces etc), at the end insert “ other than Gibraltar ”.
11In section 343(5)(b) (power in regulations about service inquiries to create offences), after “British overseas territory” insert “ other than Gibraltar ”.
12In section 372 (evidence in proceedings before civilian courts), at the end of paragraph (c) insert “ other than Gibraltar ”.

Footnotes

  1. I1
    S. 15 in force at 21.11.2017 by S.I. 2017/1131, reg. 2
  2. I2
    S. 2 in force at 19.7.2018 for specified purposes by S.I. 2018/876, reg. 2(a)
  3. I3
    S. 2 in force at 1.1.2019 in so far as not already in force by S.I. 2018/876, reg. 2(b)
  4. I4
    S. 3 in force at 22.5.2019 for specified purposes by S.I. 2019/961, reg. 2(1)(a) (with reg. 3)
  5. I5
    S. 4 in force at 22.5.2019 for specified purposes by S.I. 2019/961, reg. 2(1)(a) (with reg. 3)
  6. I6
    S. 5 in force at 22.5.2019 for specified purposes by S.I. 2019/961, reg. 2(1)(a) (with reg. 3)
  7. I7
    S. 3 in force at 1.7.2019 in so far as not already in force by S.I. 2019/961, reg. 2(1)(b) (with reg. 3)
  8. I8
    S. 4 in force at 1.7.2019 in so far as not already in force by S.I. 2019/961, reg. 2(1)(b) (with reg. 3)
  9. I9
    S. 5 in force at 1.7.2019 in so far as not already in force by S.I. 2019/961, reg. 2(1)(b) (with reg. 3)
  10. I10
    S. 6 in force at 1.7.2019 by S.I. 2019/961, reg. 2(2)
  11. F1
    S. 1 omitted (15.12.2021) by virtue of Armed Forces Act 2021 (c. 35), ss. 1(2), 24(2)(a)
  12. I11
    S. 10 in force at 17.4.2024 for specified purposes by S.I. 2024/562, reg. 2(a)
  13. I12
    S. 11 in force at 17.4.2024 for specified purposes by S.I. 2024/562, reg. 2(b)
  14. I13
    S. 7 in force at 16.10.2024 by S.I. 2024/1032, reg. 2(1)
  15. I14
    S. 8 in force at 16.10.2024 by S.I. 2024/1032, reg. 2(1)
  16. I15
    S. 9 in force at 16.10.2024 by S.I. 2024/1032, reg. 2(1)
  17. I16
    S. 10 in force at 16.10.2024 in so far as not already in force by S.I. 2024/1032, reg. 2(2)
  18. I17
    S. 11 in force at 16.10.2024 in so far as not already in force by S.I. 2024/1032, reg. 2(2)
  19. I18
    S. 12 in force at 16.10.2024 by S.I. 2024/1032, reg. 2(1)