17.Following the judgement of the European Court of Human Rights in the case of Hood v UK, the arrangements for pre-trial custody under the Service discipline Acts have been reviewed. In this case, one of the applicant’s complaints was that his commanding officer could not be considered impartial in relation to authorising his pre-trial detention and that this was in violation of Article 5 of the Convention. The Court concluded that the applicant’s misgivings were objectively justified.
18.Decisions on whether an individual should be held in Service custody during an investigation will, under the Act, be taken by a judicial officer.
19.The main effect of sections 1–10, in addition to introducing greater commonality between the practices of the three Services, is to make provision in all three Service discipline Acts for a judicial officer to determine whether a suspect or accused should be held in custody. He will apply criteria similar to those used in ordinary domestic law, namely under the Police and Criminal Evidence Act 1984 pre-charge and the Bail Act 1976 post-charge. For the purposes of these provisions, a judicial officer will normally be a judge advocate or a naval judge advocate, but may be other suitably qualified persons specified in section 7 of the Act. The flexibility to appoint other qualified persons for this purpose will facilitate readier territorial coverage of applications, wherever they need to be heard. The Services also intend to use live television links where possible, to ensure that applications are dealt with as expeditiously as possible.
20.A judge advocate is a civilian lawyer appointed by the Judge Advocate General, who is responsible to the Lord Chancellor, to be a member of an Army or Royal Air Force court-martial. The Royal Navy have uniformed judge advocates (who are naval barristers of at least five years standing) appointed by the Chief Naval Judge Advocate to be members of naval courts-martial.
21.If a CO wishes to keep a suspect in custody during the investigation, he must be brought before a judicial officer in order for the judicial officer to authorise his continuing custody. When this must be done will depend on the circumstances of the investigation and may be very soon after his arrest. In no circumstances can the period during which a person is in custody without charge exceed 96 hours. Once the 96 hour point is reached the suspect will either have to be charged or released.
22.Once a suspect has been charged, if he is to be kept in custody, he must be brought before a judicial officer as soon as practicable. The judicial officer may at this stage, and subsequently, authorise detention for periods of no more than eight days (28 days with the consent of the accused).
Commentary on Sections The new arrangements