Commentary on Sections Section 22: Civilians subject to service discipline
87.The purpose of this section is to amend some of the circumstances in which a person is a “civilian subject to service discipline” (referred to in the note to this section as “CSSDs”). AFA 2006 provides for a jurisdiction for service courts (the Service Civilian Court and the Court Martial) over defined groups principally of persons who work or reside with the armed forces in certain areas outside the United Kingdom, or are travelling on service ships or aircraft. The groups are defined in Schedule 15 to AFA 2006. Under section 370 of AFA 2006, a person who is not subject to service law is a civilian subject to service discipline if he or she is within any paragraph of Part 1 of Schedule 15.
88.The main jurisdiction under AFA 2006 arises in relation to criminal conduct. A CSSD commits an offence under AFA 2006 if he does anything which is an offence under the law of England and Wales or which would be such an offence if the conduct had been committed in England or Wales. CSSDs may also commit a small number of the disciplinary offences provided for in AFA 2006. Those which a CSSD may commit include looting, breach of standing orders and obstructing a service policeman.
89.Paragraph 4 of Schedule 15 currently covers Crown servants if they work mainly or wholly in support of the armed forces and are in a designated area.(4) Those designated for the purposes of paragraph 4 include the Falkland Islands, Germany and Gibraltar. The result is that a Crown servant who mainly works in support of the armed forces in (for example) Gibraltar is a CSSD when in Germany even if he is there on holiday. This is considered excessive and impractical. Subsection (2) of section 22 limits paragraph 4 so that a Crown servant who works solely or mainly in support of any of the armed forces in a designated area is only a CSSD in two circumstances. One is if he is the designated area in which he usually works. The other is if he is in another designated area, but he has come there wholly or partly to work in support of the armed forces.
90.Paragraph 5 of Schedule 15 currently applies to a person whenever they are outside the British Islands, if he or she is employed in a specified naval, military or air-force organisation by reason of the United Kingdom’s membership of the organisation. The only organisation currently specified (by the Armed Forces (Civilians Subject to Service Discipline) Order 2009) is NATO. The effect of paragraph 5 is considered too wide, because it purports to apply service jurisdiction wherever the employee is (outside the British Islands) and regardless of the purpose for which he is there. Subsection (3) of section 22 amends paragraph 5 in a way which parallels the amendment to paragraph 4. It limits paragraph 5, so that the employee is only a CSSD in two circumstances. One is if he is in the foreign country or territory where he usually works. The other is if he is in another foreign country or territory wholly or partly for the purposes of that work.
91.Subsection (4) makes a parallel amendment to paragraph 6 of Schedule 15. Paragraph 6 applies to members and employees of specified organisations whenever they are in a designated area. The organisations currently specified include the Navy, Army and Air Force Institutes and the Soldiers, Sailors, Airmen and Families Association (Forces Help). The areas designated are the same as for paragraph 4. The same problems exist as to width of the jurisdiction, with the result that paragraph 6 applies when they are in any designated area and whether or not they are there for their work. The amendment made by subsection (4) to paragraph 6(1)(b) limits paragraph 6 to members and employees of the organisations specified, but only while they are in the designated area in which they normally work for the organisation or they have come to another designated area wholly or partly for the purposes of that work.
92.Broadly speaking, paragraph 10 of Schedule 15 applies to a person who stays outside the British Islands with someone within paragraph 5 of Schedule 15 (employees of specified military organisations). Subsection (5) of section 22 amends paragraph 10 so a person staying with such an employee is only within the paragraph in two circumstances. One is if the person stays with the employee in the country or territory in which the employee normally works. The other is if he stays with the employee in a country or territory to which the employee came for the purpose of his work.