Commentary on Sections Section 15: Increase in maximum term of detention for certain offences
52.Section 305 of AFA 2006 empowers a drug testing officer to require a person subject to service law to provide a sample of urine to test for controlled drugs(2). It is an offence to fail to comply with such a requirement. Any sentence of imprisonment or service detention imposed in respect of the offence must not exceed 51 weeks.
53.Section 4 of the Reserve Forces Act 1996 empowers Her Majesty to make orders, and the Defence Council to make regulations, with respect to the reserve forces. Section 95 of that Act creates various offences in relation to orders and regulations under section 4 (such as fraudulently obtaining pay contrary to orders or regulations, and making false statements when giving information required by orders or regulations). Again, any sentence of imprisonment or service detention imposed by the Court Martial in respect of these offences must not exceed 51 weeks.
54.Subsections (1) and (2)(a) amend these provisions so that the maximum of 51 weeks applies only to imprisonment, and not to service detention. The effect is that, as in the case of other service offences, the maximum term of detention that can be imposed by the Court Martial is two years (under section 164 of AFA 2006).
55.In the case of an offence under section 305 of AFA 2006 committed before section 281(5) of the Criminal Justice Act 2003 comes into force, paragraph 4 of Schedule 2 to the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059) substitutes a maximum of 6 months instead of 51 weeks. This is because section 281(5) of the 2003 Act, when commenced, will increase the maximum term of imprisonment for summary offences from 6 months to 51 weeks. Due to an oversight, this transitory provision does not apply to the offences under section 95 of the Reserve Forces Act 1996. Subsection (2)(b) corrects the error by providing that, where such an offence is committed before section 281(5) of the 2003 Act comes into force, the maximum term of imprisonment that may be imposed by the Court Martial is 6 months.