Armed Forces Bill — Human rights memorandum: Memorandum by the Ministry of Defence

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ARMED FORCES BILL
EUROPEAN CONVENTION ON HUMAN RIGHTS MEMORANDUM
MEMORANDUM BY THE MINISTRY OF DEFENCE

Introduction
1. This memorandum addresses issues arising under the European Convention on
Human Rights (“ECHR”) in relation to the Armed Forces Bill. The memorandum
has been prepared by the Ministry of Defence.

2. On introduction of the Bill in the House of Commons, the Secretary of State, the
Rt Hon John Healey MP, proposes to make a statement under section 19(1)(a) of
the Human Rights Act 1998 that, in his view, the provisions of the Bill are
compatible with the Convention rights.

3. The primary purpose of the Bill is to renew the Armed Forces Act 2006 (“AFA 2006”)
and, in so doing, continue in force the primary legislation governing the armed
forces. The AFA 2006 provides nearly all the provisions for the existence of the
Service Justice System (“SJS”), which enables Service personnel and civilians in
certain situations outside of the UK to be held to account for both criminal and
disciplinary offences anywhere in the world. For constitutional and legal reasons,
an Armed Forces Act is required every five years, a requirement which has its
origins in the Bill of Rights 1688, which provides that the raising of a standing army
is against the law unless Parliament consents to it.

4. Other key measures in the Bill include those to improve the effectiveness and
efficiency of the SJS and modernise and improve victim support, provision to
establish the Defence Housing Service, new powers for the prevention and
detection of offences being committed with drones on Defenc e property, and
provision to place the Armed Forces Covenant fully into law.

5. The Ministry of Defence considers that clauses of, and Schedules to, this Bill which
are not mentioned in this memorandum do not give rise to any human rights issues.

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Summary of the Bill

6. The Bill includes measures on a range of defence-related matters.

7. Clause 1 (Duration of Armed Forces Act 2006) makes provision for the continuation
in force of the AFA 2006 up to the end of 2031. As it stands, AFA 2006 will expire
at the end of 14 December 2026, in accordance with s. 382 of AFA 2006, as
amended by the Armed Forces Act 2021, and pursuant to Orders in Council made
under that provision.

8. Clause 2 (Armed Forces Covenant ) implements a manifesto commitment to
strengthen support for the armed forces community by placing the Armed Forces
Covenant fully into law.

9. Clause 3 (Defence housing and other property) establishes the Defence Housing
Service, a new non-departmental public body with the general function of improving
the supply and quality of defence housing.

10. Clause 4 (Interference with uncrewed devices ) provides powers for Defence
personnel to authorise the use of approved equipment to detect and prevent certain
offences being committed with drones at Defence sites.

11. Clauses 5-9 contain provision about protection from sexual and violent behaviour,
including –

a. Provision for Sexual Harm Prevention Orders (SHPO) and Sexual Risk Orders
(SRO) to be made in the service justice system.

b. Provision for Domestic Abuse Protection Notices and Domestic Abuse
Protection Orders to be made in the Service Justice System.

c. Provision to align the powers of service police and service courts to those of
civilian police and the criminal courts with regard to stalking.

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d. Provision to extend Service Restraining Orders to ensure that their breach can
be dealt with in the criminal justice system once a defendant leaves the armed
forces.

e. Provision imposing a new duty on service police to have regard to statutory
guidance issued under the Stalking Protection Act 2019, Domestic Abuse Act
2012, Sexual Offences Act 2003 and the Crime and Policing Act 2025 covering
the matters of stalking, domestic abuse and sexual offending.

f. Provision to align legislation on public protection for those sentenced to
imprisonment by service courts for certain serious offences (e.g. serious violent
offences and coercive control) so they are subject to Multi -Agency Public
Protection Arrangements in the same way as those in the civilian justice system.

12. Clauses 10 -11 contain provision pertaining to support for victims of service
offences, including –

a. Provision to place a duty on the SofS to issue an updated code of practice for
victims of service offences that sets out the services that victims of crime can
expect to receive in the service justice system.

b. Provision to enable victims in the service justice system to make a complaint to
the Parliamentary Commissioner without needing to be referred via their MP.

13. Clauses 12-16 contain provision pertaining to powers of investigation, arrest and
charging, including –

a. Provision to enable the Secretary of State to issue a Service Policing Protocol
that will make provision for how certain persons involved in service policing
work together effectively, ensuring that service police investigations are free
from improper interference.

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b. Provision to expand a judge advocate’s power to issue search warrants to
enable service police to carry out searches of premises that are not classed as
‘relevant residential premises’.

c. Provision to enable civilian police to arrest a person reasonably suspected of
committing an offence under section 12 of the Armed Forces Act 2006
(disobedience to law commands).

d. Provision to extend the authorisation of pre -charge custody to the Provost
Marshal of the Defence Serious Crime Command.

e. Provision to introduce a 6-month time limit for charging summary only offences
in the service justice system.

14. Clauses 17 -19 contain provision about the duties and powers of commanding
officers, including –

a. Provision to expand the existing duty on Commanding Officers under section
113 of AFA 2006 to report certain suspected offences to the service police, to
include suspected offences committed by persons not within their own chain of
command.

b. Provision to allow Commanding Officers to impose a punishment of service
detention at summary hearings for service persons at OR4 ranks.

c. Provision to allow deprivation orders to be imposed in combination with the
more serious punishments available to a Commanding Officer dealing with
service offences at summary hearings.

15. Clauses 20-26 contain provision about service courts, including –

a. Provision to implement changes made in the Armed Forces Act 2021 to enable
personnel of OR-7 rank (chief petty officer, staff corporal, staff sergeant, Royal

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Marine colour sergeant, flight sergeant, or chief technician) to serve on court
martial boards.

b. Provisions to enable a judge advocate to impose post -charge conditions (akin
to bail conditions in the civilian justice system) on a defendant in matters before
the Court Martial and Service Civilian Court.

c. Provision to enable Court Martial rules to establish a procedure to dismiss
charges to arraignment, and to allow for charges which have been dismissed
in such circumstances to be brought again where conditions specified in the
rules have been met, replicat ing equivalent procedures which in the civilian
justice system (voluntary bill of indictment).

d. Provision to enable judge advocates to make those orders under Part 3 of the
Mental Health Act 1983 which a Crown Court judge could make in cases where
the accused has not been found to be unfit for trial, or not guilty by reason of
insanity.

e. Provision to correct an error in the Armed Forces Act 2006 relating to the
Service Civilian Court’s ability to correct simple sentencing errors.

f. Provision to impose on the Secretary of State a duty to issue guidance to public
authorities that provide services to victims in the service justice system
regarding concurrent jurisdiction in cases where a case could be taken forward
in either the service or civilian systems.

16. Clause 2 7 makes provision to enable the service courts to reduce the
disqualification period in respect of a driving disqualification order where the
offender completes a driving course.

17. Clauses 28-29 (Rehabilitation of offenders ) makes provision to align service
rehabilitation periods within the service justice system so that administrative action
can be taken should the underlying behaviour be incompatible with armed forces
values and standards. Further, it will enable administrati ve action to be taken

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following convictions for certain service offences which would be considered
immediately spent under the Rehabilitation of Offenders Act 1974 where the
underlying behaviour may be incompatible with armed forces values and
standards.

18. Clause 30 (Armed Forces Commissioner) makes provision to extend the remit of
the Armed Forces Commissioner to cover the Royal Fleet Auxiliary.

19. Clauses 31-37 make provision about reserve forces, including –

a. Transfers between regular and reserve forces

b. Repeal of Parliamentary control of reserve force numbers and commitments

c. Call out for permanent service

d. Recall for service

e. Consequential amendments of other Acts

f. Application of call out and recall amendments to transitional classes

g. Punishment of offences of desertion or absence without leave

h. Creation of a new non -departmental public body to replace the Reserved
Forces and Cadets Associations with a new national body to carry out the same
functions.

20. Clauses 38-39 make provision to remove reporting requirements to Parliament in
respect of reserve commitments.

21. Clauses 40-41 make provision regarding the Visiting Forces Act 1952 to address
inconsistencies between that Act and the NATO Status of Forces Agreement,
including -

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a. Provision to explicitly prevent the ability to pass a death sentence in service
justice proceedings conducted by visiting forces in the UK.

b. Provision to introduce a new mechanism empowering the Secretary of State
Defence to determine conclusively, in the case of dispute only, whether a
service person (SP) was on or off duty at the time of the alleged offence as
question of fact. Thereby enabling State to State negotiation.

22. Clauses 42-44 make provision about the Ministry of Defence Police, including –

a. Reforms to the governance and administration of Ministry of Defence Police.

b. Provision to allow Ministry of Defence Police officers to operate more efficiently
when pursuing Defence-related offences that cross national borders, bringing
their powers in line with existing powers held by territorial police forces, the
British Transport Police (BTP) and the Civil Nuclear Constabulary (CNC).

c. Provision to correct an oversight where the Ministry of Defence Police has been
omitted from the Police Property Act 1897 to align the MDP with Home Office
police forces.

23. Clauses 45-49 address various miscellaneous matters, including –

a. Provision to enable detention of persons overseas in cases of mental disorder.

b. Provision to amend the Oil and Pipelines Act 1985 to expand the energy
sources and fuels in relation to which the Oil and Pipelines Agency may
exercise its defence-related functions.

c. Provision to amend the Protection of Military Remains Act 1986 to automatically
designate all military shipwrecks, regardless of age, as "protected places".

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d. Minor and technical amendments to the Police and Criminal Evidence (Northern
Ireland) Order 1989 to update terminology pertaining to the armed forces.

e. A technical correction to paragraph 41 of Schedule 5 to the Coroners and
Justice Act 2009.

Convention Article Analysis

24. The following provides analysis of the interaction of the provisions in the Bill with
the various Convention rights engaged.

Clause 1 – Duration of Armed Forces Act 2006

25. This clause will extend the duration of the AFA 2006 to allow it to continue in force
until the end of 2031. The AFA 2006 is the main piece of primary legislation which
establishes the service justice system - the justice and discipline system for
members of the UK armed forces.

Article 6

26. The service justice system enables the investigation, prosecution and trial of
service offences and, where relevant, can involve the determination of criminal
charges against persons subject to service law and civilians subject to service
discipline. These aspects of the system engage Article 6, however the Department
is of the view that its processes and procedures are Article 6 compliant. Since the
late 1990s, the Article 6 compatibility of the service justice system has been
considered extensively by the courts, both in the European Court of Human Rights
and domestically. See in particular Findlay v UK (1997) 24 EHRR 221 – the
judgment in this case led to the establishment of independent prosecuting
authorities for the armed forces, the appointment of a statutory court administration
officer with responsibility for selecting the lay members of courts -martial, instead
of selection by the chain of command and the ending of confirmation by the chain
of command of the court -martial’s decisions on verdict and s entence. It is clear
from rulings such as this that the current system is compatible with Article 6.

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Articles 2 and 3

27. Where the service justice system is engaged in investigations into allegations of
unlawful killing by UK forces or ill -treatment by those forces, this may engage
Article 2 or 3 ECHR. In cases concerning the death of a person as a result of
actions attribut able to UK armed forces, the investigative duty under Article 2
ECHR will be engaged. There is a similar investigative obligation under Article 3
where there are allegations of involvement by UK armed forces in ill-treatment. The
requirements of the invest igative duty will depend on the circumstances of a
particular case, however case law clearly establishes that the service justice
system can in principle satisfy the requirements of the investigative duty under
Articles 2 and 3 ECHR . See in particular R (Mousa) v Secretary of State for
Defence (No. 2) [2013] EWHC 1412 (Admin) , in which the Divisional Court
concluded that the restructure of the Iraq Historic Allegations Team to place the
investigation in the hands of the Royal Navy Police rather than the Ro yal Military
Police satisfied the independence requirements of Articles 2 and 3 ECHR.

Article 14

28. Where a service person is alleged to have committed a criminal offence in the UK,
there is usually concurrent jurisdiction for that person to be tried in either the service
justice system or the civilian criminal justice systems in England and Wales,
Scotland and Northern Ireland. Where cases are tried in the service justice system
rather than the civilian system, there have been examples of service personnel and
victims whose cases were dealt with in that system arguing that they have been
treated differently contrary to Article 14 ECHR (prohibition of discrimination). Both
the service justice and civilian criminal justice systems are ECHR compatible. The
general position of the service justice system being compatible with the ECHR
(particularly Articles 2, 3 and 6) is addressed above. There is existing case law
which holds that differences between civilian and service justice systems do not
give rise to unlawful discrimination contrary to Article 14 (see R v Blackman [2014]
EWCA Crim 1029; paras 20 to 24).

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Clause 2 – Armed Forces Covenant

29. This measure will introduce a duty to have due regard when exercising certain
functions to the three principles of the Armed Forces Covenant, : “(a) the unique
obligations of, and sacrifices made by, the armed forces; (b) the principle that it is
desirable to remove disadvantages arising for service people from membership, or
former membership, of the armed forces; and (c) the principle that special provision
for service people may be justified by the effects on such people of membership,
or former membership, of the armed forces.” The duty will be imposed on specified
persons when exercising public functions in relation to a specified matter. In order
to support the specified persons, the Secretary of State may produce guidance,
and where such guidance is produced, the specified persons must have regard to
that guidance when exercising their functions in relation to the specified matter.
The term “service people” is defined within the AFA 2006 (section 343B) and
includes active service personnel, veterans and relevant family members.

Article 14

30. When public bodies are considering the Armed Forces Covenant duty, they may
also be considering ECHR compatibility (being public authorities within the
meaning of section 6 of the Human Rights Act 1998), particularly Article 14 in
circumstances where there is potential for discrimination regarding the ability of
different groups to enjoy their Convention rights. The Department considers that
the drafting of the new provisions enables the Armed Forces Covenant duty to be
applied in a manner that is ECHR compliant.

31. The measure will operate alongside other duties imposed on the relevant public
bodies, including the ECHR and the public sector equality duty. The new duty could
therefore result in situations where public authorities are obliged, in relation to a
policy or decision, to consider the principles of the Armed Forces Covenant while
at the same time being obliged to avoid discrimination under Article 14 ECHR or
apply other non-discrimination measures such as the public sector equality duty in
relation to protected characteristics. Considering the wide range of areas in which
the duty may arise, a number of articles under the Convention may be cited in

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conjunction with Article 14, but Articles 8 (private and family life) and 6 (right to a
fair trial) are considered most likely to be relevant in an Armed Forces Covenant
context.

32. The Department does not consider that there is anything incompatible with giving
due regard to the Armed Forces Covenant principles and such non -discrimination
principles. The measure would require bodies subject to the duty to have due
regard to the principles of the Armed Forces Covenant, and when doing so, to have
regard to any guidance published by the Secretary of State. This would impose a
requirement that the relevant bodies consider the principles/guidance when
exercising the specified functions, bu t this falls short of a requirement that the
principles/guidance should be the only consideration when doing so. Any policy,
decision or action taken which does not follow the principles/guidance will not be
unlawful so long as the relevant body can show t hat the principles/guidance were
taken into consideration and there was a justification for taking a different
approach. Equally, Article 14 ECHR is a qualified right and differences in treatment
may be justifiable; potentially by reference to the principl es of the Armed Forces
Covenant.

33. In addition, there may be cases where members of the armed forces community
share a protected characteristic with members of the civilian population, and in
such cases this measure may justify an outcome which takes into account the
interests of the armed forces community, rather than the civilian community. An
obvious example is the priority given to veterans with a service attributable injury
in the housing allocation process in England, engaging Article 14 with Article 8. In
such cases, provided any diff erence in treatment can be objectively justified,
compliance with Article 14 will be maintained.

Clause 3 – Defence housing and other property

34. This clause establishes the Defence Housing Service (‘DHS’), a non-departmental
public body whose primary purpose will be to improve the supply and quality of
defence housing. The DHS and the Secretary of State will be empowered under

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these provisions to compulsorily acquire land, including rights over land, in certain
circumstances.

Article 1 of Protocol 1

35. Land (or an interest in land) is property and the compulsory deprivation of, or
interference with, land engages A1P1. Such interference will not infringe A1P1 if it
is in the public interest and there is proportionality between the means employed
and the aims pursued by the State (James v United Kingdom A 98 (1986); 8 EHRR
123 PC, 50).

36. The Department considers these new powers to be in the public interest and
proportionate to the aim they seek to achieve. The power for the DHS to acquire
land or rights over land compulsorily is subject to the statutory safeguard that the
power may only be exercised where authorised by the Secretary of State. Further,
the power may be exercised in relation to land only where the DHS requires the
land for purposes connected with any of its functions. The power conferred on the
Secretary of State to compulsorily acquire l and may be exercised only if the
Secretary of State requires the land for defence purposes. The existing statutory
provisions for compulsory purchase that are applied or modified by these
provisions (the Land Compensation Act 1961, Compulsory Purchase Act 1965,
Land Compensation Act 1973 and Acquisition of Land Act 1981), strike a fair
balance between the public interest aims being pursued and the fundamental rights
of individuals (notably, under Part 2 of the Land Compensation Act 1961 and
sections 7 and 1 0 of the Compulsory Purchase Act 1965, compensation is
available). The amendments to the existing statutory framework made by this
clause are considered to create no greater interference with A1P1 than is already
the case and is thus considered to be justified.

Clause 4 – Interference with uncrewed devices

37. This measure concerns the creation of a new authorisation regime to authorise
defence personnel to use specialised equipment to prevent or detect offences
being committed with drones at defence sites and in relation to defence assets.

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Article 1 of Protocol 1

38. The Department considers that the new authorisation regime engages Article 1 of
the First Protocol (A1P1) insofar as counter-drone measures are used to defeat a
drone, and the subsequent seizure and retention of a drone, is likely to amount to
an interference with a person’s peaceful enjoyment of their property. There is some
risk that the measure may damage a drone and the potential for the drone to be
destroyed if directed energy equipment is used (e.g. a laser).

39. While A1P1 is engaged, the Department does not consider that A1P1 is infringed.
An authorisation will only be lawfully granted to deal with suspected criminal
activity. While it cannot be guaranteed that in all cases where counter -drone
equipment is used that the drone targeted is in fact being used to commit a criminal
offence, there will need to be an assessment by the responsible person that it
appears likely that an offence is about to be committed or is already in progress
before the equipment is used to defeat a drone. As s uch, MOD’s view is that any
interference with the rights guaranteed under A1P1 is a necessary control of the
use of property in the general interest and will be provided for by law in the new
statutory regime that this measure will create.

Clause 5 - Sexual harm prevention orders and sexual risk orders

40. This measure will enable service police to apply to service courts for the making of
a sexual harm prevention order (SHPO) in respect of a defendant in proceedings
for a service offence. Secondly, it will enable sexual risk orders (SRO) to be issued
in service courts, with an ability for service police to apply to service courts for the
making of such an order in respect of a defendant in proceedings for a service
offence.

41. This measure engages Articles 5 (liberty), 6 (fair trial), 8 (family life), 9 (thought,
conscience and religion), 10 (freedom of expression) and 11 (freedom of assembly)
of the ECHR.

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Article 5

42. Article 5 is concerned with the deprivation of liberty and not with mere restrictions
on freedom of movement. The provisions give the court the discretion to impose
prohibitions on an individual. The court may only impose proportionate prohibitions
or requirements which restrict an individual’s movement that are necessary for the
purpose of protecting the public from sexual harm. The ECtHR has held, in
Guzzardi v Italy , that the difference between restriction on movement and
deprivation of liberty is one of degree or intensity, rather than nature or substance.
The domestic courts have held, in individual cases, that no deprivation of liberty
arose from control orders imposing a curfew alongside other restrictions on
conduct. The provisions allow courts to de termine appropriate prohibitions which
do not amount to the kind of arbitrary detention proscribed by Article 5. Accordingly,
the Department is of the view the provisions are compatible with Article 5.

Article 6

43. SHPOs and SROs engage the civil limb of Article 6, as they relate to the
determination of civil rights and obligations. It is assessed that they do not amount
to a “criminal charge” within the meaning of Article 6(2) and (3) ECHR. The
Department considers that the proceedings in which these orders may be imposed
satisfy fair trial requirements: the rules which govern their imposition ensure the
existence of a prescribed right of appeal, and the ability to subsequently apply to
the court to vary or discharge the order affords further safeguards. Breach amounts
to a criminal offence in the case of both SHPOs and SROs, in connection with
which the usual processes and appeal routes will apply in accordance with Article
6.

Articles 8, 9, 10 and 11

44. Service courts will have a wide discretion to impose a range of conditions, which
may include conditions such as prohibiting the defendant from contacting specified
individuals and attending certain locations or requiring an individual to desist from
doing a specified act. As such, this measure may engage Article 8 if prohibitions in

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an order prevent contact with friends or family. Article 9 may be engaged in
circumstances where places they wish to assemble are part of their religious or
philosophical beliefs. Article 10 may be engaged insofar as any prohibition or
requirement interfer es with freedom of expression by prohibiting an individual
communicating in a specified way or with specified persons, which the recipient
asserts interferes with their freedom of expression. Finally, it is possible Article 11
may be engaged if (for exampl e) an order prohibited the recipient from meeting
with specified groups of people thereby limiting freedom of assembly or
association.

45. The Department considers that the provisions are lawful, and any interference
arising will be a proportionate interference with these qualified rights. The new
provisions are necessary to protect the public from sexual harm when a defendant
is dealt with i n the service justice system. They pursue the legitimate aim of
protecting the rights of others as well as the prevention of crime and disorder. The
provisions are “lawful” as the tests for imposition of prohibitions or requirements
are clearly set out in primary legislation (prescribed by law) and the circumstances
in which such prohibitions or requirements may be imposed are sufficiently
foreseeable for the general public. There is also a right to appeal, or to seek
variation or discharge or an order, whi ch further mitigates against any risk of
unjustifiable interference with convention rights.

Clause 6 - Protection from domestic abuse

46. Clause 6 seeks to emulate the provisions in Part 3 of the Domestic Abuse Act 2021
within the Service Justice System so that the Service Police can issue Service
Domestic Abuse Protection Notices (‘ SDAPN’) and the service courts can order
Service Domestic Abuse Protection Orders (‘SDAPO’).

47. This clause engages Articles 5, 6, 7, 8, 9, 10, 11 and A1P1.

Articles 5 and 6

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48. Article 5 is engaged by two aspects of the measure. The first is where P has
breached a SDAPN (or SDAPO) and may be remanded in custody thereafter, the
Department is also seeking a power of arrest for SDAPN breach, breach of a
SDAPO is a criminal offence. The second regards the imposition of restrictions
through either a SDAPN or SDAPO. In respect of both, Art 5 is concerned with the
deprivation of liberty and not with mere restrictions on freedom of movement.
Breach of SDAPO will be a criminal offence whic h can result in the arrest and
detention of an individual.

49. The requested provisions give the court the discretion to impose prohibitions,
restrictions and/or positive requirements on an individual who has not been
convicted. However, the court may only impose that which is necessary and
proportionate to protect a specific person(s) from domestic abuse or the risk of
domestic abuse. The European Court of Human Rights has held, in Guzzardi v
Italy, that the difference between restriction on movement and deprivation of liberty
is one of degree or intensity, rather tha n nature or substance. Account must be
taken of a wide range of factors including: type, duration, effect and manner of
implementation. In adopting the SDAPO/SDAPN regime service justice courts
must, as far as practicable, shape requirements such as to avo id conflict with a
person’s religious beliefs or interference with work or education.

50. SDAPN and SDAPOs engage the civil limb of Article 6, as they relate to the
determination of civil rights and obligations. It is assessed that imposition of either
does not amount to a “criminal charge” within the meaning of Article 6(2) and (3)
ECHR. The Department considers that the proceedings in which these orders may
be imposed satisfy fair trial requirements: the rules which govern their imposition
ensure the existence of a prescribed right of appeal, a right to make
representations (on issue of a SDAPN) and the ability to subsequently apply to the
court to vary or discharge the order affords further safeguards. SDAPO breach
amounts to a criminal offence, in connection with which the usual processes and
appeal routes will apply in accordance with Article 6.

Article 7

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51. There is an argument to be made that Article 7 is engaged on the basis that a
SDAPO can be imposed for conduct pre -dating the coming into force of the
measures and that an SDAPO amounts to a criminal charge. The Department
considers that the imposition of a SDAPO does not interfere with rights under
Article 7 as they are civil orders, rather than criminal and their imposition is aimed
at the protection of specified people from future behaviour rather than punishment.

Articles 8, 9, 10, 11 and Article 1 of Protocol 1

52. Service courts will have a wide discretion to impose a range of conditions, which
may include conditions such as prohibiting the defendant from contacting specified
individuals and attending certain locations or requiring an individual to desist from
doing a specified act. As such, this measure may engage Article 8 if prohibitions in
an order service to prevent contact with friends or family. Article 9 may be engaged
in circumstances where places they wish to assemble are part of their religious or
philosophical beliefs. Article 10 may be engaged insofar as any prohibition or
requirement interferes with freedom of expression by prohibiting an individual
communicating in a specified way or with specified persons, which the recipient
asserts interferes with th eir freedom of expression. Article 11 may be engaged if
(for example) an order prohibited the recipient from meeting with specified groups
of people thereby limiting freedom of assembly or association. Finally, Article 1 of
Protocol 1 may be engaged if P is prevented from entering their home, which could
be considered an interference with their peaceful enjoyment of that property.

53. The Government considers that the provisions are lawful, and any interference with
these qualified rights is justified in the public interest. The Department is seeking
to replicate provisions that have been extant in the Criminal Justice System over
the cour se of the last few years. The provisions are necessary to protect the
interests of victims of domestic abuse when a defendant is either subject to service
law or is being dealt with in the SJS. The provisions pursue the legitimate aim of
protecting the rights of others as well as the prevention of crime and disorder. The
provisions are “lawful” as the tests for imposition of prohibitions or requirements
are clearly set out in primary legislation (prescribed by law) and the circumstances
in which such prohibitions or requirements may be imposed may be committed are

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sufficiently foreseeable for the general public. There is also a right to appeal, or to
seek variation or discharge or an order, which further mitigates against any risk of
unjustifiable interference with convention rights.

Clause 6 - Protection from stalking

54. Clause 6 emulates provision in the Stalking Protection Act 2019 so that Stalking
Protection Orders (SPOs) can be applied for and granted within the Service Justice
System (SJS) in the same way that they apply in the Civilian Justice System (CJS).

55. This clause engages Articles 5, 6, 7, 8, 9, 10 and 11 of the ECHR.

Articles 5 and 6

56. These provisions give the court the discretion to impose prohibitions on an
individual. The court may only impose proportionate prohibitions that are necessary
for the purpose of protecting a person from the risks associated with stalking. The
ECtHR has held, i n Guzzardi v Italy , that the difference between restriction on
movement and deprivation of liberty is one of degree or intensity, rather than nature
or substance. The domestic courts have held, in individual cases, that no
deprivation of liberty arose from control orders im posing a curfew alongside other
restrictions on conduct. The provisions allow courts to determine appropriate
prohibitions which do not amount to the kind of arbitrary detention proscribed by
Article 5. Accordingly, the Department is of the view the provisions are compatible
with Article 5.

57. SPOs engage the civil limb of Article 6, as they relate to the determination of civil
rights and obligations. It is assessed that they do not amount to a “criminal charge”
within the meaning of Article 6(2) and (3) ECHR. The Department considers that
the proceedings in which these orders may be imposed satisfy fair trial
requirements: the rules which govern their imposition ensure the existence of a
prescribed right of appeal, and the ability to subsequently apply to the court to vary
or discharge the order affords further safeguards. Breach amounts to a criminal

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offence in connection with which the usual processes and appeal routes will apply
in accordance with Article 6.

Article 7

58. MoD considers that SPOs do not interfere with rights under Article 7 as they are
civil orders, rather than criminal. While breaching an SPO is a criminal offence, a
person would only be guilty of an offence after the SPO has been imposed and
then breached. In other words, the criminal liability arises from the act of breaching
the order, which would be an offence under national law at the time it is committed.

Articles 8, 9, 10 and 11

59. Service courts will have broad discretion to impose a range of prohibitions. These
may include conditions such as preventing the defendant from contacting specific
individuals, restricting access to certain locations, or requiring them to refrain from
particular actions. Such measures may engage Article 8 of the European
Convention on Human Rights if they interfere with personal relationships, such as
contact with friends or family. Article 9 may be engaged where the restricted
locations are connected to the individual's religious or philosophical beliefs. Article
10 could be relevant if the order limits freedom of expression, for instance by
prohibiting communication with certain individuals or in specific ways. Finally,
Article 11 may be engaged if the order restricts the individual's ability to meet with
particular groups, thereby affecting their freedom of assembly or association.

60. The Department considers the provisions to be lawful, and any resulting
interference with qualified rights will be proportionate. These new measures are
necessary to protect the public from the risks associated with stalking when a
defendant is dealt with under the service justice system. They pursue the legitimate
aim of protecting the rights of others as well as the prevention of crime and
disorder. The provisions are lawful because the criteria for imposing prohibitions or
requirements are clearly define d in primary legislation and are sufficiently
foreseeable to the general public. Additionally, individuals subject to such orders

20

will have the right to appeal, or to seek variation or discharge of the order. This
further reduces the risk of any unjustified interference with their Convention rights.

Clause 7 - Extension of Service Restraining Orders

61. Clause 7 seeks to extend Service Restraining Orders (SROs) into the three
criminal justice systems of the United Kingdom to secure effective protection for
victims once the defendant has left the armed forces. If breach of an order can be
marked outside the Service Justice System, it will mean that arrest, detention and
sentencing will occur.

62. This clause engages Article 5 and Article 6.

Article 5

63. Article 5 is concerned with the deprivation of liberty and is engaged where
someone has either: breached a SRO once they have left the Armed Forces and
are no longer subject to service law or (b) has been sentenced to a custodial
sentence after breach. Recognition of a SRO in the CJS will mean that police will
be able to effect arrest and detain someone pending trial/conviction. Anyone
arrested for breach of a restraining order by the civilian police must be brought
before a magistrates’ court within 24 hours, excluding Sundays and certain public
holidays.

64. Article 5(1)(b) provides that interference with the right to liberty is permitted for non-
compliance with a lawful court order and Article 5(1)(c) provides that interference
with the right to liberty is permitted for the purpose of bringing an individual before
the competent legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent the person
committing an offence. The Department would state that breach of a restraining
order could fall to be considered under both limbs.

Article 6

21

65. The breach of a SRO amounts to a criminal offence under Article 6, giving rise to
a punitive sentence. The Department considers that the proceedings in which
breach may be dealt with satisfy fair trial requirements and are well established in
the CJS: the proposal ensures the existence of a prescribed right of appeal once
the defendant has left the Armed Forces (both for breach and the making of the
order), and is also seeking to ensure the ability to subsequently apply to the court
in the CJS to vary or discharge the order which affords further safeguards.

66. MOD wish to ensure that the enforceability of an SRO post-service also applies in
Northern Ireland and Scotland. The general rules in respect of the burden of proof
are available in respect of breach of a non-harassment order given that there is no
express statutory provision for a reasonable excuse within section 9 of the
Protection of Harassment Act 1997. Therefore, if the defendant has, in effect, a
reasonable excuse for behaviour that would breach the terms of their restraining
order, once the defence has been raised or has arisen, it is for the prosecutor to
discharge the burden of excluding it beyond reasonable doubt.

67. The Government considers that the provisions are lawful, and any interference
arising will be a proportionate interference with these qualified rights. The new
provisions pursue the legitimate aim of protecting the rights of others as well as the
prevention of crime and disorder. The Department is seeking to ensure a right to
appeal, or to seek variation or discharge of an order once a defendant has left the
Armed Forces, which further mitigates against any risk of unjustifiable interference
with convention rights.

Clause 8 – Guidance issued to civilian police forces

68. This measure will require the service police to have regard to guidance issued by
the Secretary of State to other police forces relating to the disclosure of information
for the purposes of preventing domestic abuse, sexual offending and stalking. It
will also require the Ministry of Defence police to have regard to guidance issued
under section 77 of the Domestic Abuse Act 2021.

Article 8

22

69. This measure may result in interference with the relevant individual’s right to private
life as the service police or Ministry of Defence police may release information
about them to members of the public, such as information about their previous
convictions. The Department is satisfied that the interference, if arising, with Article
8 is justified and proportionate.

70. The service police or Ministry of Defence police may already disclose personal
information, including conviction records, to third parties. In order to make such
disclosures, the police rely (and will continue to rely) on their common law powers
that enable them to make disclosures where it is necessary to prevent crime. The
police’s common law powers to share information with the public have been
thoroughly and consistently recognised by the courts so long as any disclosure
meets the thresholds of relevancy and proportionality. Any disclosure by the police
must also be in accordance with existing legal framework and, in particular, the
Human Rights Act 1998, data protection legislation and the Rehabilitation of
Offenders Act (“ROA”) 1974.

71. The measure is to prevent crime and to protect the public. The guidance will not
compel the police to disclose information; in each case, and in accordance with
their duties as public authorities under section 6 of the Human Rights Act 1998, the
service police or Ministry of Defence police will still be required to consider whether,
on the individual facts, disclosure would be a justified interference with the
suspected perpetrator’s ECHR rights.

Clause 9 - Assessment etc of risks posed by certain offenders

72. Clause 9 introduces a requirement for individuals convicted by the service courts
of certain serious violent, sexual, or specified offences, who meet the sentencing
criteria under section 327(3)(b), to be automatically subject to supervision under
the Multi-Agency Public Protection Arrangements (MAPPA), as set out in sections
325 to 327 of the Criminal Justice Act 2003. It also establishes that the Ministry of
Defence is a “duty to cooperate” agency for the purpose of MAPPA.

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73. This clause engages Articles 5 and 8 of the ECHR, both qualified rights.

Articles 5 and 8

74. Once an offender is identified as a MAPPA offender, a risk management plan and
an appropriate level of MAPPA management will be agreed by the responsible
authorities prior to the offender’s release into the community. This involves sharing
the offender's personal information, and sometimes the victim’s personal
information, between the responsible authorities and the duty to co -operate
agencies. This engages Art 8 ECHR, however MOD considers any int erference
with the right to be justified as it is in in the interests of public safety and for the
prevention of disorder and crime.

75. Risk management plans may also require an offender to reside at approved
premises, or to comply with specific licence conditions. These conditions may
include restrictions on contact with children, limitations on places the offender may
visit, a duty to re port to an offender manager, mandated participation in certain
activities, covert monitoring, or disclosure of information to a member of the public
for their protection. These measures engage Articles 5 and 8 ECHR. The
Department considers that it is compliant with these articles as such requirements
will be taken in the interests of public safety and for the prevention of disorder and
crime.

Clause 13 - Entry for purposes of obtaining evidence etc

76. Clause 13 makes provision to enable the service police to obtain search warrants
in respect of a wider range of types of non -residential premises, aligning the
powers of service police in this respect with the UK’s territorial police forces.

77. This measure engages qualified rights under Article 8 (right to private and family
life) and Article 1 of Protocol 1 (protection of property).

Article 8 and A1P1

24

78. Warrants for the entry and search of premises under this provision will be issued
by a judge advocate only where certain relevant requirements are met. Most
notably, these requirements include that the judge advocate is satisfied that there
are reasonable grounds for believing that a relevant offence has been committed;
there is material which is likely to be of substantial value to the investigation of the
offence on the premises; the material would be likely to be admissible in evidence
at a trial for the offence ; and that it does not consist of or include items subject to
legal privilege, excluded material or special procedure material.

79. As such, any interference with Article 8 will be in accordance with the law and
necessary in the interests of the prevention of disorder or crime. Any interference
with Article 1 of Protocol 1 is a necessary control of the use of property in
accordance with the general interest. The Department considers this measure to
be ECHR compliant.

Clause 14 - Arrest and detention by civil authorities

80. Clause 14 creates a new power of arrest for UK civilian police forces. It will enable
civilian police to arrest without warrant a person who is reasonably suspected of
having committed an offence under section 12 of the Armed Forces Act 2006
(disobedience to lawful commands).

81. Articles 5 (right to liberty) and 8 (right to private and family life) will be engaged,
however the Department considers that the measure will not be in breach of the
UK’s obligations under those Articles.

Article 5

82. Under these new provisions, a person may be arrested by a civilian policeman
based upon a reasonable suspicion of having committed the offence of
disobedience to lawful commands and must as soon as practicable thereafter be
brought into service custody. The Department considers that the arrest and
bringing into custody of an indiv idual in the circumstances provided for in these

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provisions will amount to a deprivation of liberty that is permitted under Article
5(1)(c) ECHR. Any arrest that is made will be for the purpose of placing the
individual in service custody at which point the usual procedural requirements
applicable to cases in the service justice system will apply, including requirements
to keep a person’s custody under review and the requirement that a person be
brought before a judge advocate as soon as practicable (Part 4 of the Armed
Forces Act 2006).

83. In view of these features of the legislative framework, the Department is of the view
that arrest and detention under these provisions will be a lawful arrest or detention
of a person effected for the purpose of bringing him before a competent legal
authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing
after having done so, in accordance with Article 5(1)(c). Further, the existing
procedural features of the service justice system, namely the requirement to be
brought before a judge advocate as soon as practicable and the system of
summary hearings applicable to offences under s.12 of the Armed Forces Act
2006, will mean that Articles 5(3) and 5(4) are complied with.

Article 8

84. Where an individual is arrested and placed into service custody under these
provisions, or where a custodial sentence is given in respect of the offence of
disobedience to lawful commands, there may be interference with Article 8 if that
individual is as a result deprived of their enjoyment of their private or family life.

85. The Department considers that these new provisions are necessary to ensure that
civilian police officers have sufficient powers to enforce the law on disobedience of
lawful orders. It is essential to the operational effectiveness of the armed forces
that lawful commands are obeyed – this underpins the system of military command
and discipline that ensures the armed forces continue to function as an effective
fighting force that is equipped to defend the realm. Furthermore, such orders will
often be given to me mbers of the armed forces to place certain restrictions on
individuals that are necessary for the protection of others, for example to address

26

violence against women and girls. These provisions will strengthen the
enforcement mechanisms that are in place to protect such vulnerable groups. It is
therefore the Department’s view that any interference with Article 8 is necessary in
the interests of protecting national security, the prevention of disorder or crime, and
for the protection of the rights and freedoms of others, in accordance with Article
8(2). Given this power is to be set out in statute, it will be in accordance with the
law. Thus, Article 8 compliance is maintained.

Clause 15 - Pre-charge custody

86. Clause 15 extends authorisation of pre -charge detention/custody to the Provost
Marshal of the Defence Serious Crime Command and officers that he will delegate
this function to. Article 5 is engaged by this measure.

Article 5

87. Article 5 rights (liberty) of an individual are engaged by this measure since it
concerns pre-charge detention and there is a core element of confinement. The
proposal is to bring pre -charge detention in line with the civilian criminal justice
system by in troducing an independent third -party decision maker. Further, the
intent is to ensure that a specified cohort of individuals are trained, available on a
24-hour basis (by way of rota) and will in time, ensure that experienced trained
individuals are available to make decisions on detention in serious matters.

88. Article 5 provides for specified occasions that the right to liberty may be interfered
with. This includes the lawful arrest or detention of a person effected for the
purpose of bringing him/her before the competent legal authority on reasonable
suspicion of having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done so.

89. The suggestion is that the alteration in the current model is only being engaged for
the more serious service offences in Schedule 2 together with the prescribed
circumstances which are detailed in sections 114 (and its attendant regulations)
these are mat ters for which the CO has no jurisdiction to investigate. Therefore,

27

detention is not arbitrary (it is for the purposes of investigation- as specified in AFA
06). Officers may only carry out an arrest if they have a reasonable suspicion (See
section 67(1) AFA 06) of the commission of an offence.

90. The Department is not proposing any deviation in the timetable currently allotted
(under the CO model) for such detention and its extension. Under this proposal, it
should be easier to contact a trained, independent individual to decide based on
established grounds for refusal than it could currently be under the existing model.
Access to welfare services such as medical supervision is not going to change,
and neither is access to court proceedings to challenge the lawfulness of detention,
which is a key requirement of the conditional interference with the individual’s right
to liberty.

91. The Government considers that the provisions are lawful, and any interference
arising will be a proportionate interference with these qualified rights. The new
provisions pursue the legitimate aim of the prevention of crime and disorder.

Article 6

92. This measure concerns the disposal of civil rights and obligations and therefore
engages Article 6. However, the Department considers that this measure is Article
6-compliant, as all the existing procedural safeguards that apply to an authorisation
of pre-charge custody in the service justice system will continue to apply in the
same way where that authorisation is given by the Provost Marshal of the Defence
Serious Crime Command and those officers to which this function is delegated.

Clause 16 Time limit for charging certain offences

93. Clause 16 introduces a new six -month time limit for charging offences under
section 42 of the Armed Forces Act 2006, where those offences would be triable
only in a magistrates’ court under the civilian justice system. This clause is intended
to mirror the effect of section 127 of the Magistrates’ Courts Act 1980.

94. This clause engages Articles 5 and 6 of the ECHR.

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Articles 5 and 6

95. Where a person subject to service law is found guilty of an offence within the SJS,
that individual may receive any of the punishments listed in s.164 AFA 2006, which
includes a sentence of imprisonment of up to two years. Therefore, this measure
engages both Articles 5 and 6.

96. MoD considers that the measures are ECHR compliant. All the usual procedural
safeguards applicable to cases in the service justice system will apply, including
relevant appeal mechanisms, in accordance with Article 6. Any deprivation of
liberty imposed upo n sentencing will be a lawful period of detention following
conviction by a competent court, in accordance with Article 5(1)(a) ECHR.

Clause 18 - Summary hearingspunishments available to commanding officers

97. Clause 1 8 will give commanding officers the power to impose a punishment of
service detention at summary hearings for all service persons at OR4 ranks.
Previously, commanding officers had the power to impose a punishment of service
detention to service persons at O R4 ranks in the Royal Navy, Royal Marines and
Royal Air Force but not in the Army and the Royal Air Force Regiment.

98. This clause engages Articles 5 and 6 of the ECHR.

Articles 5 and 6

99. The amendments to s.132 and s.133 AFA 06 means that a commanding officer will
have the power to award a punishment of service detention to OR4 ranks in the
Army and Royal Air Force Regiment, where previously this could have only been
awarded by a Judge Advocate at a Court Martial. Article 5 and Article 6 ECHR are
therefore engaged by this amendment. The Department considers that it is
compliant with those articles. Commanding officers already have this power in

29

relation to OR4 ranks in the other Services, and it remains open to an accused
service person to elect Court Martial if they do not wish for their alleged offence to
be heard summarily.

Clause 19 - Deprivation orderspunishments available to commanding officers

100. The clause corrects an oversight when deprivation orders were introduced into
the Service Justice System. Currently Commanding Officers can impose a
deprivation order at the same time they impose a fine or a minor punishment but
not when imposing one of the m ore serious punishments: service detention,
forfeiture of seniority or reduction in rank or disrating. The clause corrects this
oversight to allow the combination of a deprivation order and service detention,
forfeiture of seniority or reduction in rank or disrating.

101. A deprivation order deprives the offender of any rights in the property and
engages A1P1.

102. A Commanding Officer is currently unable to impose a deprivation order as well
as one of the more serious punishments which results in only the more serious
punishment being awarded. The change will allow a deprivation order to be
imposed in combination with the more serious punishment where it is proportionate
to do so.

103. There is no change to the basis on which a deprivation order may be made
under section 177E of the Armed Forces Act 2006.

104. Where the offender is not the owner of the property, the owner can seek the
return of their property under the Armed Forces (Disposal of Property) Regulations
2023.

105. The Government considers that the measure is lawful as a proportionate
interference with the qualified right engaged. It is in the public interest and subject
to the conditions provided for by law.

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Clause 21 – Power to impose post-charge conditions on persons not in service
detention

106. Clause 21 seeks to establish a specific power enabling a Judge Advocate to
impose post-charge conditions on a defendant in matters before either the Court
Martial or Service Civilian Court.

107. This clause engages Articles 5, 6 and 8 of the ECHR.

Articles 5 and 6

108. This provision gives a Judge Advocate the discretion to impose bail conditions
on a defendant post -charge before either the Court Martial or Service Civilian
Court. Therefore, it engages both Articles 5 and 6.

109. Article 5(1) sets out circumstances in which deprivation of liberty may be
authorised. Where a Judge Advocate imposes bail conditions on a defendant, this
would be for the purpose of bringing the defendant before a competent authority,
or when considered n ecessary to prevent the defendant from committing an
offence or fleeing after having done so. Accordingly, MOD considers that any
deprivation of liberty is in accordance with Article 5(1)(c), and the provisions are
compatible with Article 5.

110. Appropriate safeguards are in place to ensure that defendants have the right to
a fair trial. Conditions will be imposed at a hearing only, where the accused will be
present and has the right to make representations. The accused may also apply to
the court to vary or discharge conditions. Accordingly, the Department is of the
view that the provisions are compatible with Article 6.

Article 8

31

111. The provision allows a Judge Advocate to impose conditions which may include
prohibiting the accused from contacting specified individuals or visiting certain
locations. Therefore, it engages Article 8.

112. The Department considers that any interference with Article 8 is necessary and
proportionate for the legitimate aim of protecting the rights of others or for the
prevention of crime and disorder. Accordingly, the Department is of the view that
the provisions are compatible with Article 8.

Clause 22 - Dismissal of charges

113. This clause will permit the making of court martial rules in regard to dismissal
of charges, and for such charges to be reinstated, provided conditions specified in
the rules are met.

114. These provisions mirror existing provision made in the civilian criminal justice
system by virtue of Paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998
(dismissal of charges) and section 2(2)(b) of the Administration of Justice
(Miscellaneous Provisions) Act 1933.

115. This clause engages Article 6 (criminal limb) of the ECHR.

116. Rules made in accordance with this clause will permit an accused person to
make an application to dismiss charges after service of the advance information
and before arraignment. A judge advocate will be required to dismiss such a
charge if it appears to them that the evidence against the applicant would not be
sufficient to properly convict them. This mirrors provision made by paragraph 2 of
Schedule 3 to the Crime and Disorder Act 1998, thus aligning the service justice
and civilian criminal justice systems. It is also in accordance with the judgment of
the Court Martial Appeal Court in R v H&J [2019] EWCA Crim 1863 . MOD
considers that this measure is ECHR compliant, as it allows accused person to
apply to have the charges dismissed at an early stage in the process where the
evidence does not support them.

32

117. Rules made under this section will also provide that charges dismissed by a
judge advocate on the basis that the evidence contained in the advance
information was not sufficient to properly convict may be brought again only with
the permission of a High Court judge. The case law is clear that such permission
will only be granted in exceptional circumstances (significant new evidence, a basic
and substantive error of law or a serious procedural irregularity): see Serious Fraud
Office v Evans & Ors [2014] EWHC 3803 (QB). This provision mirrors that made in
s2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 and
rules made under that section (see rule 10.9 Criminal Procedure Rules 2025).

118. The Department considers that although Article 6(3) is engaged this provision
is lawful. Any application to bring the charges again must be served on the
defendant, who will have an opportunity to make representations to the court
before a decision is made.

Clause 23 – Hospital orders

119. This clause will enable judge advocates to make the same orders under Part 3
of the Mental Health Act 1983 (MHA 83) as can be made by a Crown Court judge.
Currently, judge advocates have powers to make some of these orders in cases
where the defendant is either found to be unfit to plead or not guilty by reasons of
insanity. However, in cases where this threshold is not met, they cannot make
orders.

120. This clause engages Article 5 of the ECHR.

121. These measures will allow judge advocates to make orders under the following
sections of the MHA 83: s35 (remand for assessment), s36 (remand for treatment),
s37 (hospital order), s38 (interim hospital order), s41 (restriction order), s45A
(imprisonment with hospital order and/or restriction order).

122. Article 5(1) sets out the circumstances in which an individual may be deprived
of their liberty. Articles 5(1)(a) and (e) are relevant to this measure. Article 5(1)(a)
provides that such a deprivation is lawful after conviction by a competent court,

33

while article 5(1)(e) provides that the detention of a person of unsound mind, in
accordance with a procedure prescribed by law, will be lawful. The Court Martial
is a competent court for these purposes.

123. The provisions of Part 3 of the MHA 83 are consistent with the principles set
out in the case law of the European Court of Human Rights in relation to article
5(1)(a) and (e).

124. Orders made under s35 or 36 MHA 83 are not made after conviction by a
competent court. Accordingly, they can only lawfully authorise deprivation of liberty
if they can be justified under article 5(1)(e), as being in relation to a person of
unsound mind. Both sections set out in some detail the requirements for objective
medical evidence, and furthermore set out comprehensive rules governing the
length of the deprivation and the procedure to be followed by the court.

125. Orders under s37, 38, 41 and 45A are all made after conviction by a competent
court. Although orders under s37 and s38 are not punitive in nature, EctHR case
law has clarified that article 5(1)(a) applies where persons of unsound mind are
detained in a psychiatric facility after conviction, where there is a sufficient causal
link between the conviction and the deprivation of liberty.

126. The Department considers that this measure is lawful. The judge advocates
already have the power to make most of the relevant orders (apart from orders
under s45A MHA 83), albeit only in a specific category of cases. The purpose of
this measure is to bring the service justice system wholly into alignment with the
civilian criminal justice system in this regard. The MHA 83 contains a number of
safeguards designed to meet conditions set out in the case law in relation to (for
example) the need for objective medical evid ence, effected only when necessary
and in an appropriate institution, after a fair procedure including access to legal
representation and the courts.

Clause 27 – Driving disqualification ordersreduced disqualification period

34

127. Clause 27 enables the Court Martial and the Service Civilian Court to order a
defendant to undertake an approved driving course to reduce a period of driving
disqualification imposed by one of those courts.

128. This measure engages Article 6, Article 8 and Article 1 of the First Protocol.

Article 6

129. This measure concerns the disposal of civil rights and obligations and therefore
engages Article 6. However, the Department considers that this measure is Article
6-compliant, as all the usual procedural safeguards applicable to cases in the
service justice system will apply and courts will be expected to apply these powers
in accordance with the Human Rights Act 1998.

Article 8 and Article 1 of Protocol 1

130. Any measure that may result in an individual being disqualified from driving will
engage A1P1 and Article 8. The Department does not consider these qualified
rights to be infringed: any interference with family life will be in accordance with the
law and necessary in the interests of public safety, the prevention of disorder or
crime and the protection of the rights and freedo ms of others. In respect of A1P1,
any disqualification from driving under these provisions will amount to a control of
the use of property in the general interest.

Clauses 28-29 – Rehabilitation of offenders

131. This measure will establish a 12 -month rehabilitation period for service
sentences. Currently, such sentences are immediately spent, however this state of
affairs does not reflect the seriousness of the sentences and precludes the taking
of administrative action against the offender. Further, this measure disapplies the
relevant sections of the exceptions orders made under the Rehabilitation of
Offenders Act 1974 in order to allow the Armed Forces to pursue administrative
action against serving members of the Armed Forces to require disclosure of
immediately spent convictions handed down whilst in service. Similarly, the current

35

state of affairs precludes the taking of administrative action against the offender in
circumstances where immediately spent convictions are handed down for,
amongst other things, sexual and drug offending, in respect of which the Armed
Forces have a zero-tolerance policy.

Article 8

132. This measure engages Article 8, however the Department considers that it is
ECHR compliant. The provision imposing new rehabilitation periods is in
accordance with the law, as the new rehabilitation periods will be set down in
statute and it pursues the legitimate aim of the prevention of crime and the
protection of public safety. Both measures will ensure that appropriate action (in
the form of administrative action) can be taken where necessary to sanction service
persons who have committed offences serious enough to warrant demotion or who
have committed sexual or drug related offences which are incompatible with
service in the Armed Forces. This will ensure such individuals can be prevented
from holding positions of a level of responsibility that is unsuitable, in the interests
of protecting the safety of the public and the prevention of crime. The rehabilitation
periods proposed are in line with existing sentences of similar seriousness and are
considered proportionate to achieving these aims. See in particular R (P) v
Secretary of State for Justice [2019] UKSC 3.

Article 7

133. These provisions do not have implications for Article 7 rights since they only
apply to sentences handed down after Royal Assent.

Clause 30 – Commissioner’s functions in relation to Royal Fleet Auxiliary

134. Clause 30 will extend the remit of the Armed Forces Commissioner (as set out
in the Armed Forces Commissioner Act 2025) to enable them to conduct
investigations into the general welfare of members of the Royal Fleet Auxiliary
(RFA).

36

Article 8

135. Article 8 is engaged as these provisions will permit the Commissioner to inspect
and take copies of any document, take photographs or make recordings whilst on
RFA premises. The expansion of existing provisions under sections 340J -K AFA
06 enable the Commissioner to require information, documents and evidence from
a person for the purposes of these investigative powers.

136. In this context, interference with rights under Article 8 is justified in the interests
of protecting the rights and freedoms of others. The Commissioner will act as an
independent champion for members of the RFA, aiming to improve their welfare
and strengthen parliamentary oversight. Having access to relevant information and
documents is a crucial element of the Commissioner being able to fulfil this
objective.

137. These powers will be set out in primary legislation, in accordance with the law.
The legislation will therefore be suitably clear, accessible, and any interference will
be foreseeable, for affected persons.

138. On balance, the interference with rights under Article 8 is a proportionate
measure which is necessary in a democratic society. States are afforded a wide
margin of appreciation in this area. No one can be compelled to do anything they
could not be compelle d to do in civil proceedings, items subject to legal privilege
are carved out and the power can only be exercised for investigations. Based on
the defined scope of these investigations, it is anticipated that the power will be
limited in its applicatio n to personal information and as MOD will be under a
separate obligation to co-operate with and reasonably assist the Commissioner, it
is considered that collaboration between the Commissioner and MOD for these
purposes will be sufficient in the vast major ity of cases. The definition of RFA
premises also explicitly excludes living accommodation.

139. We therefore consider that the Commissioners powers pursue a legitimate aim
which has been balanced against the potential interference in the rights of
individuals under Article 8.

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Article 1 of Protocol 1

140. The expansion of existing provisions under s340J AFA 06 would enable the
Commissioner to require a person to provide documents in the person’s
possession or control for the purposes of the Commissioner’s investigative powers
into general RFA welfare matters, with the same powers as the High Court/Court
of Session to compel attendance and examination of witnesses and the production
of documents (s340J(2) AFA 06).

141. The power of the Commissioner to require information, including documents,
from persons will be set out in primary legislation. The power is compatible with the
rule of law, it is precise and suitably foreseeable. The intervention serves a
legitimate public i nterest as the Commissioner will act as a strong independent
champion for RFA members, aiming to improve welfare and strengthen
parliamentary oversight. Having access to relevant information and documents is
a crucial element of the Commissioner being abl e to fulfil this objective. It is
therefore justified on the basis of protecting the rights and freedoms of others.

142. The intervention does strike a fair balance with the requirements protecting
individuals’ peaceful enjoyment of possessions. The Commissioner’s powers will
be limited in nature, notably they may only exercise them for the purposes of a
welfare investigatio n, it is considered that collaboration between the
Commissioner and MOD for these purposes will be sufficient in the vast majority
of cases (avoiding the need to access documents belonging to individuals) and
finally section 340J(3) AFA 06 provides that a person may not be required to do
anything that the person could not be compelled to do in civil proceedings before
the High Court (or in Scotland, the Court of Session).

Clause 32 - Call out for permanent service and Clause 33 - Recall for service

38

143. Clause 32 will make amendments to provisions in the Reserve Forces Act 1996
(RFA 96) to enable the Secretary of State to make an order to disapply aggregate
service relevant for call-out in certain circumstances. The making of such an order
must be reported to each House of Parliament without delay. The changes will be
based on both an ‘opt-out’ model whereby the measures would apply automatically
unless the individual opted out (i.e. they would have retrospective effect), and an
‘opt-in’ model whereby the measures would not apply automatically unless the
individual opted in.

144. Clause 33 will also make amendments to provisions in the RFA 96. The effect
of these provisions is as follows. Liability for recall under section 66(1) RFA 96 will
be extended to include former members of the voluntary reserve forces (as defined
by section 2 RFA 96). Liability for recall will be extended such that the upper limits
under section 66(2) will be the age of 65 or after 18 years following discharge or
transfer from the regular or volunteer forces. A new provision will be added to
enable recall for ‘warlike operations’. Finally, the Secretary of State will be able to
make an order to disapply aggregate service relevant for recall in exceptional
circumstances. The making of such an order must be reported to each House of
Parliament without delay. Th e changes will be based on an ‘opt -out’ model
whereby the measures would apply automatically unless the individual opted out
(i.e. they would have retrospective effect), and an ‘opt -in’ model whereby the
measures would not apply automatically unless the individual opted in.

145. Article 8 is engaged as recall or call-out is likely to impact an individual’s private
and family life, use of their home and potentially their correspondence. In addition,
individuals with recall liability have a requirement under section 75 RFA 96 to
provide such information as may be specified in regulations made under the power
in section 75(1) for the purposes of ensuring recall is possible. Failure to comply
with regulations under this section without reasonable excuse, or providing false
information, may constitute an offence.

146. In this context, interference with rights under Article 8 is primarily justified in the
interests of national security. These measures are considered to introduce
changes that will enhance Defence’s powers to mobilise its reserve forces at pace

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and scale (in response to a defined need following exercises and scoping work),
modernising the relevant provisions to bring them into line with the current nature
of modern conflict and societal changes. It is well established that such issues are
central to the constitutional responsibilities of the Government.

147. The provisions outlined above will be set out in primary legislation, in
accordance with the law. They will map onto an existing, well -established
framework in the RFA 96, replicating existing processes and safeguards. To
ensure any interference with Article 8 rights remains suitably clear, accessible and
foreseeable for impacted individuals (and relevant for the proportionality analysis)
– a clear and effective communications plan in relation to the requirement to opt -
out for relevant individuals, with realistic timeframes, will be implemented.

148. On balance, the interference with rights under Article 8 is a proportionate
measure which is necessary in a democratic society. The opt -out model is
considered necessary primarily in the interests of national security – i.e. to ensure
that MOD is in a position to respond to a scenario whereby there is an international
armed conflict, triggered by UK’s obligations under the NATO treaty which lasts
over 18 months. The Department’s view is that in this scenario, the threat to both
national security, and the demands of protecting the rights and freedoms of the UK
population, cannot be understated. Modelling of this scenario indicates that MoD’s
required trained output would grow substantially and that recalling and retraining
those liable to recall would be a s ignificant and essential component of meeting
this objective.

149. There is considered to be a real risk that human factors, including a lack of
knowledge and inertia, may negatively impact response levels if the legislation was
fully created on an ‘opt in’ basis. ‘Opt out’ programmes result in a higher degree of
uptake: organ donation and pension automatic enrolment schemes are two oft -
cited examples. An ‘opt out’ approach for all four provisions for currently serving
members of the regular and volunteer reserve forces would therefore increase the
uptake of potential workforce for recall (noting that recall liability doesn’t equate to
guaranteed recall in practice).

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150. The reduced numbers under a fully ‘opt-in’ model are considered insufficient in
relation to the aims that are being pursued in the interests of national security.
Taken as a whole – MoD considers that it would need to be able to recall / retrain
as many in dividuals as possible (out of those who could potentially be liable) in
these circumstances and therefore a model which includes opt -out is materially
more able to deliver on that objective. However, to increase the proportionality of
the approach, opt -out will only be applied to currently serving members of the
regular forces and volunteer reserve forces. The changes will not be applied
automatically to those who have already left (i.e. those members of the ex-regular
reserve forces or who retain a recall liability).

151. To ensure there are adequate safeguards in relation to opt -out for those
impacted the following proposals will be implemented:

a. a defined grace period for opt -out (e.g. from a specified date or event
such as commencement of the provisions) will be set out in secondary
legislation and deal with circumstances where e.g. no opt-out notice was
received by an individual or there is no deemed service of the notice and
further time may be required;

b. The Schemes to apply for exemption and financial assistance under Part
VIII RFA 96, as well as defined limits on duration and scope will continue
to apply to impacted individuals which would ensure that those
unsuitable for service are not mobilised;

c. MOD will additionally consider whether an amendment to regulations
made under sections 78 (individual exemptions etc. from call out) and
79 (individual exemptions etc. from recall) RFA 96 is required to include
non-receipt of notice of the requirement to o pt-out as grounds for
applications for exemption.

152. States are afforded a wide margin of appreciation in this area. We therefore
consider that the provisions pursue a legitimate aim which has been balanced
against the potential interference in the rights of individuals under Article 8.

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Clause 40 – Prohibition on sentences of death

153. The clause amends s.2(4) of the Visiting Forces Act 1952 (VFA 1952) to
remove the ability of visiting forces, when conducting service justice proceedings
in the UK, to pass a death sentence in respect of a service person of that visiting
force. This clause engages Articles 2 and 3.

Articles 2 and 3

154. Paragraph 7(a) of Article VII of the North Atlantic Treaty Organisation (‘NATO’)
Status of Forces Agreement 1951 (‘SOFA 1951’) provides that a death penalty is
not to be carried out in the receiving State by the authorities of the sending State,
if the legislation of the receiving State does not provide for such punishment in a
similar case. This is reflected in s.2(4) of the VFA 1952 which provides that:
“sentence of death passed by a service court of a country to which this section
applies shall not be c arried out in the United Kingdom unless under United
Kingdom law a sentence of death could have been passed in a similar case.” .
Capital punishment was abolished in UK law by the Human Rights Act 1998 (HRA
1998) which incorporated ECHR into domestic law, and s.36 of the Crime and
Disorder Act 1998.

155. S.2(4) of the VFA 1952 is arguably inconsistent with Article 2, Article 3, and
Article 1, Protocol 6 (and later reinforced in Protocol 13), which states that: “The
death penalty shall be abolished. No-one shall be condemned to such a penalty
or executed.” . Therefore, it is arguable that the passing a capital punishment
sentence itself by a visiting force in service proceedings in the UK may amount to
a breach of the UK’s obligations under the ECHR. Article VII, paragraph 5(a) to (c)
SOFA 1951 specifies b oth States will assist each other where a member of the
force, civilian component, or dependents of the sending State are arrested and

42

charged in the receiving State where the member is in the “hands of the sending
State”. Similarly Paragraphs 6(a) to (b) stipulate that both States will assist each
other in relation to the investigation, seizure, and evidence gathering. This requires
the UK, as receiving State, to assist the sending State in cases which could
potentially include investigation and handing over of arrested service persons who
may be at risk of being sentenced to the death penalty1 in breach of Articles 2 and
3. The amendments to s.2(4) VFA 1952 are necessary to prevent this and ensure
compliance with ECHR.

Clause 41 Evidence of act being carried out in course of duty

156. This clause amends s.11(4) of the VFA 1952 to remove the existing rebuttable
presumption that primacy for service persons of visiting forces, in cases of
concurrent jurisdiction for alleged offences committed in the performance of their
duty, rests with the sending State unless the contrary is proved. The amendment
introduces a new mechanism and empowers the Secretary of State to determine,
in the case of dispute only, conclusively whether the visiting forces service person
was on or off duty, as a question of fact. The Secretary of State for Defence will do
so after receiving representations from the relevant prosecutorial authority and the
visiting State - the process is to be set in guidance by the department. The
determination will allow negotiation bet ween States as required under the NATO
SOFA 1951. The determination will be subject to judicial review from interested
parties. If the service person is found not to be in the performance of their official
duty – the decision to prosecute will be for each prosecutorial office in the normal
way. This will align the VFA with Article VII, paragraph 3(a)(ii) of NATO SOFA
1951 which provides that primacy of jurisdiction for any act or omission done by a
service person in the performance of their official duty rests with the sending State.
The VFA 1952 and the independence of the prosecutorial authorities role2 does not

1 (Al-Saadoon and Mufdhi v. the United Kingdom, 2010, §§ 123 and 140-143; A.L. (X.W.) v. Russia, 2015, §§ 63-
66; Shamayev and Others v. Georgia and Russia, 2005, § 333).
2Framework_agreement_between_the_Law_Officers_and_the_Director_of_Public_Prosecutions__CPS.pdf, [17]-
[20]; [46]-[59]; The Code for Crown Prosecutors | The Crown Prosecution Service.

43

provide or permit negotiation between States as required under Article VII
paragraph 7(b) and Article XVI.

Article 6

157. The amendment is considered Article 6 compliant as it relates to a
determination by the Secretary of State for Defence as a matter of fact, whether
the visiting forces service person was on or off duty, and is subject to judicial review
by interested parties – therefore maintaining access to justice. The Secretary of
State for Defence’s solely relates to the question of whether the sending State or
receiving State has primacy of jurisdiction in any subsequent prosecution.

158. The amendment does not impact the right to a fair trial and or the protections
available to the service person in the investigation, prosecution, and service justice
proceedings or UK criminal justice systems in England and Wales, Scotland and
Northern Ire land. MOD considers that the measures are Article 6(2) and (3)
compliant as they remain unchanged. The usual procedural safeguards in relation
to a fair trial as applicable to cases in the service justice system will apply, including
relevant appeal mecha nisms, in accordance with Article 6. Any deprivation of
liberty in the arrest and or sentence imposed will be a lawful period of detention
following conviction by a competent court, in accordance with Article 5(1)(a) to (c)
of the ECHR. Furthermore, following the amendment of s.2(4) of the VFA 1952 a
visiting force will also be prohibited, in any service justice proceedings conducted
by the visiting forces in the UK, from issuing a death penalty.

Clause 43 - Cross-border enforcement

159. Clause 43 amends Part 10 of the Criminal Justice and Public Order Act 1994
(cross-border enforcement) to enable members of the Ministry of Defence Police
to exercise cross -border enforcement powers that can currently be exercised by

44

members of territorial police forces across the United Kingdom as well as by
members of the British Transport Police and Civil Nuclear Constabulary.

160. They will allow members of the MDP to execute arrest warrants (under s.136)
and carry out an arrest without a warrant (under s.137, s.137A and s.140). They
will also allow them to carry out searches of the person arrested and to search
premises the person was in immediately before being arrested and to seize
property (under s.139).

161. The power of arrest (pursuant to a warrant or otherwise) and the power to carry
out searches of the person on arrest engage Article 5. The power to carry out
searches of property engages Article 8. The power to seize property engages
Article 1 of the 1st Protocol.

162. The Government considers that the extension of these powers to members of
the MDP is lawful. The arrest of a person under these provisions falls within Article
5(1)(c) – the lawful arrest or detention of a person effected for the purpose of
bringing him/her before the competent legal authority on reasonable suspicion of
having committed an offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so.

163. Article 8 may be engaged in relation to the search of premises. However, the
search will be limited to searching for things that relate to the offence for which the
person has been arrested for. As such it is considered that any interference with
article 8 will be proportionate.

164. Article 1 of the 1st Protocol is engaged by the power to seize items. Again any
interference will be proportionate. Either items will be returned when the person is
released from arrest or retained where they may be needed as evidence in
connection with th e offence. The person will not be permanently deprived of the
items and can seek their return by applying to a court in England and Wales under
section 1 of the Police (Property) Act 1897 or to a court in Scotland or Northern
Ireland under similar legislation.

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165. The Government considers that the extension of these powers to members of
the MDP is lawful. The powers are a proportionate interference with the qualified
rights that are engaged. All are well established in the criminal justice system
across the United Kingdom.

Clause 44 - Property in possession of the Ministry of Defence Police

166. This clause amends the Police (Property) Act 1897 to enable the MDP to
dispose of property in their possession in accordance with regulations made under
section 2 of that Act. It means that the MDP will be able to either sell the property
or retain it for use for police purposes and do not need to rely on section 1 of the
Act (applications to a magistrates’ court) in such cases. The property must have
been in their possession for at least 1 year (or 6 months where a deprivation order
was made in relation to the property by a sentencing court) before they can dispose
of it under the regulations, to allow time for an owner to reclaim their property by
seeking an order under section 1 of that Act.

167. The disposal of property engages article 1 of the 1st Protocol. However the
Government considers that the interference with the qualified right is in accordance
with the law and is proportionate.

Clause 45 and Schedule 7 - Detention etc of persons overseas in cases of mental
disorder

168. Clause 45 and Schedule 7 make provision to enable service authorities to
detain persons subject to service law or civilians subject to service discipline who
experience a mental health crisis whilst deployed overseas.

169. The Department considers that the measure will engage Articles 3, 5 and 8 of
the ECHR. While these Articles may be engaged, MoD is of the view that the
measures are ECHR compliant; the proposals include certain safeguards designed
to protect the fundamental rights of individuals with acute mental health needs.

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Article 5

170. Where a person is detained under these provisions, it will amount to lawful
detention of a person who is of unsound mind under Article 5(1)(e) because the
“relevant conditions” for detention under Schedule 12 include that the person is
suffering from mental disorder and that the mental disorder is of such a nature or
degree as to warrant detention in a hospital for assessment or treatment for at least
a limited period.

171. That detention will be in accordance with a procedure set down in law, as the
precise legal tests that are required to detain a person, and the circumstances in
which they may be detained, are set out in the primary legislation - Schedule 12 of
the Armed Forces Act 2006.

172. Regulations under paragraph 6 of Schedule 12 will make provision for an order
for a person’s detention under these provisions to be reviewed by a judge
advocate, satisfying the requirement in Article 5(4) ECHR that everyone who is
deprived of their liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his or her detention shall be decided speedily by a court
and release ordered if the detention is not lawful.

173. The Department is therefore of the view that Article 5 ECHR is complied with.

Article 3

174. The legal framework has been designed to ensure that no one is subjected to
torture or to inhuman or degrading treatment or punishment as part of the new
processes that these provisions will introduce. The statutory tests that must be met
in relation to th e detention of a person under Schedule 12 will include the
requirement that the recommendation of two registered medical practitioners (or,
in urgent cases, one registered medical practitioner or nurse) must be secured.
This ensures that detention is alway s in the best interests of the patient. Further,
where an individual is not to be detained in a service hospital but rather “another

47

suitable location”, commanding officers will be required to have regard to the need
to maintain the dignity and safety of the person being detained.

175. It is for the above reasons that the Department considers this measure to
comply with Article 3 ECHR.

Article 8

176. Where a person is detained under these new provisions, Article 8 is engaged
on the basis that this may constitute an interference with private and family life.
The Department considers that any interference brought about by the operation of
this new framework is justified under Article 8(2), as it is in accordance with the law
set out in statute and necessary in the interests of the protection of health and
public safety. In that latter respect, it should be noted that the third “relevant
condition” that mu st be satisfied to authorise detention of a person under these
provisions is that it is necessary in the interests of his own health or safety, or with
a view to the protection of others, that he be so detained.

177. It is for the above reasons that the Department considers this measure to be
Article 8 compliant.

Clause 47 - Protection of military remains

178. The clause seeks to amend s.1(1) of the Protection of Military Remains Act
1986 (PMRA) to effectively automatically designate all military shipwrecks,
regardless of age, as "protected places". It seeks to align the approach already
adopted for aircraft and remove the requirement to designate each new discovery.
Vessels will be subject of a look but not touch or disturb approach as they are now.
It engages Article 1 Protocol 1 of the ECHR and Article 6 of the ECHR.

Article 1 Protocol 1 – Right to property.

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179. The PMRA 1986 and amendments only apply to military vessels and the
protection of military remains. There is no property in human remains and this is
the reason why the amendments are necessary – therefore this does not impact
any person’s possession of pr operty and so there is no interference with those
rights. The vessels to be protected are either owned by the monarch vested in the
Department or sequestered by the military for example during WW1 or WW2 and
again considered military vessels – therefore the Department does not consider
Article 1 of the First Protocol (A1P1) is infringed. The provisions apply in the same
way as they do now, all be it that the application of the protection will apply
automatically as opposed to requiring designation. Licenses are alre ady issued
under the PMRA 1986, this process and legal regime will remain in place, so there
is no interference with those rights either.

Article 6

180. The right to make a salvage claim is not prevented in “personam”. As can be
seen from the relationship between s.230 of Merchant Shipping Act 1995 and
Article 4 of the Salvage Convention as they apply to salvage. Similarly, the UKSC
confirmed that the ri ghts to bring a claim in rem under s.10(4)(a) and personam
under s.10(4)(b) of SIA 1978 is maintained, all be it that the right to make a claim
in rem is subject to stricter criteria. The UKSC also reconfirmed the position that
s.10(4)(a) was compatible w ith the right of access to court under Article 6 of the
ECHR because it was a proportionate, it pursued a legitimate aim of giving
restricted immunity under international law, and because it did not preclude
proceedings in personam (Argentum Exploration Ltd v Republic of South Africa
[2024] UKSC 16). The amendments in this case only seek to protect MOD vessels
automatically and protect human remains in line with the Department s remit to
protect the rights of those bereaved and their loved one's final resting place. MOD
consider that the amendments are necessary and justified in relation to its own
vessels, and these are classes of vessels that require specific protection.

181. S.1(4) and (5) outline criminal offences as they do now. The protections and
safeguards securing the right to a fair trial remain unchanged, including relevant
appeal mechanisms in accordance with Article 6 meaning there is no material

49

change to how Article 6 (2) and (3) of the ECHR is satisfied. The only material
change is that the vessels will be automatically subject to protection. Under the
proposals there will be no retrospective application of any offences under the
PMRA 1986. Therefore, the amendment is considered Article 6 compliant.

Ministry of Defence
14 January 2026