Military Service Offences

Military Service Offences DRAFT 7.11.12 1. INTRODUCTION Purpose of Instruction 1.1 This section explains how criminality should be considered in applications for settlement or nationality from those seeking to regularise their stay in the UK after discharge from the British Armed Forces. Military Offences 1.2 Offences against military service law are set out in the Armed Forces Act 2006 and fall into two categories: Criminal conduct offences; and Non criminal conduct (disciplinary) offences 1.3 A criminal conviction imposed under service law should be considered in the same way as one imposed by a civilian court. 1.4 A non-criminal conviction should not be considered in the same way, but may be taken into account in wider considerations of character and conduct. What is recorded on the Police National Computer (PNC)? 1.5 All convictions for criminal conduct offences are recorded on the PNC (see 2.2) 1.6 In addition, convictions for non-criminal conduct (disciplinary) offences listed in Schedule 1 of the Police and Criminal Evidence Act 1984 (Armed Forces Order 2009) (Recordable Service Offences) are recorded on the PNC. (See These should not be treated in the same way as criminal convictions when considering an application. 1.7 Other convictions for non-criminal conduct (disciplinary) offences should not be recorded on the PNC. If they do appear in error, or are disclosed by an applicant, they should be disregarded for UKBA purposes. 2. CRIMINAL CONDUCT OFFENCES How to treat a criminal conduct offence 2.1 A military criminal conduct offence covers any offence which would be recognised as an offence under civilian criminal law in England and Wales. The most common military criminal conduct offences are grievous bodily harm, common assault and battery, criminal damage, road traffic offences, and fraud. These offences are all charged in the Service Justice System as offences against section 42 of the Armed Forces Act. 2.2 Section 42 covers two main types of conduct. First, any conduct which is punishable under the criminal law of England and Wales (generally conduct taking place in England and Wales). Second, conduct outside the UK, which broadly

speaking would be punishable under the criminal law of England and Wales had it been committed in England or Wales. How a criminal conduct offence appears on the PNC 2.3 An example of how a criminal conduct offence would appear on the PNC record is: COMMITTING A CRIMINAL CONDUCT OFFENCE CONTRARY TO SECTION 42 OF THE ARMED FORCES ACT 2006 NAMELY SECTION 47 OF THE OFFENCES AGAINST THE PERSON ACT 1861 NAMELY ASSAULT OCCASIONING ACTUAL BODILY HARM. Discretion for minor offences to be disregarded 2.4 Some low-level offences are dealt with by minor punishments in line with the Armed Forces (Minor Punishments and Limitation on Power to Reduce in Rank) Regulations 2009. 2.5 Single criminal conduct offences which have attracted the following sentences should be disregarded as a conviction: Restriction of Privileges, Stoppage of Leave ; or Admonition 2.6 However, if an applicant has multiple minor punishments, particularly over a short period of time, this should be considered in line with the general requirements of character, conduct and associations under paragraph 322(5) of the rules (for settlement) or good character requirements for nationality. 3. NON-CRIMINAL CONDUCT (DISCIPLINARY) OFFENCES How to treat a non-criminal conduct (disciplinary) offence 3.1 The Armed Forces have particular requirements necessary to enforce discipline. Behaviour that does not constitute a crime in civilian life can be a disciplinary matter in the Armed Forces. For example, a person can be disciplined for behaviour ranging from disobeying an order or being untidily dressed to assisting the enemy or obstructing operations. 3.2 These are offences that exist only in the Armed Forces and, with the exception of offences listed in Schedule 1 of the Police and Criminal Evidence Act 1984 (Armed Forces Order 2009), they do not appear on the PNC. 3.3 In order to ensure that UKBA is fulfilling its commitments under the military covenant by not disadvantaging ex Armed Forces personnel, where an individual discloses a record for a non criminal conduct offence (or it appears on the PNC), it should not be treated in the same way as a criminal conviction and therefore should not lead to a mandatory refusal. 3.4 However, Schedule 1 disciplinary offences (that are recorded on the PNC) may involve serious misconduct that may be relevant to broader considerations of the character, conduct and associations requirement under paragraph 322 (5) of the

Immigration Rules (for settlement applications) and under the good character provisions in the nationality guidance. Weight to be given to non-criminal (disciplinary) offences in considering character and conduct 3.5 The nature and seriousness of disciplinary offences vary considerably. Some can be dealt with summarily by a commanding officer, who can impose penalties up to a certain level (generally a fine up to 1000 or detention up to 90 days) and some are tried by Court Martial. 3.6 In considering whether non-criminal offences are relevant to character and conduct, a single offence leading to a non-custodial sentence or detention up to 90 days should be disregarded. 3.7 Each case must be considered on its individual merits. In reaching a decision, caseworkers should take into consideration: the nature of offence and whether this reflects issues that are relevant to good character the length of sentence any previous convictions, and whether there is a pattern of behaviour that gives rise to concerns about good character age of the offence and behaviour since length of service in the army is the offence out of character Service record any compelling mitigating circumstances. 3.8 For more information, see related links: General Grounds for Refusal (UKBA website guidance) General Ground for Refusal (Staff guidance) 4. APPROVAL PROCESS 4.1 If consideration is being given to refusing an application on good character grounds on the basis of a conviction for a non-criminal (disciplinary) offence, further advice about the nature and seriousness of the offence should be sought from: [contact details to be provided for each of the services by MOD] 4.2 A decision to refuse on good character grounds must be approved at Grade 7 level. 4.3 If an applicant has been convicted of a non-criminal (disciplinary) offence and sentenced to 6 months detention or more: cases with sentences from 6 months up to 12 months should be approved by the SCS Head of Unit;

cases with sentences of 12 months or more should be cleared by the Head of Unit and referred to Ministers for information before the decision is notified.

Annex A: Non-criminal conduct (Disciplinary) Offences listed in Schedule 1 of the Police and Criminal Evidence Act 1984 (Armed Forces Order 2009). These are recorded on the PNC Section 11 Misconduct towards a superior officer Misconduct means: violence against a superior officer (subsection (1)); Up to two years' imprisonment for disrespectful behaviour. threatening or disrespectful behaviour towards a superior officer (subsection (2)); a threat to damage the superior s property (subsection (3)); Section 14 Using force toward a sentry. using force against a sentry by the threat of force, or compelling a sentry to let him or any other person pass; Up to two years' imprisonment Section 24 Damage to or loss of public or Service property (Could be considered as Schedule 2 offences. For example damaging property with an intention to endanger life. intentionally, recklessly or negligently damaging or causing loss to public or service property (subsections (1); Up to two years imprisonment for reckless conduct which does not cause damage or loss, and for negligent conduct. Section 27 Obstructing or failing to assist a service policeman. intentionally obstructing or failing to assist a service policeman or a person exercising authority on behalf of a provost officer; Up to two years' imprisonment Section 28 Resistance to arrest etc. intentionally disobeying an order ; or Up to two years' imprisonment using or threatening violence towards a person who has ordered them into arrest in the exercise of a power granted under the Act; Section 29 Offences in relation to Service custody. escaping from lawful custody; using violence against, or threatening, a person having lawful custody; Up to two years' imprisonment Section 30 Allowing escape, or unlawful release, of prisoners etc iintentionally, recklessly or negligently allowing prisoner to escape; or releasing a prisoner without authority; Up to ten years' imprisonment with intent or knowledge; otherwise, up to two years' imprisonment Section 39 an attempt to commit any Self explanatory A person convicted of an offence under

of the offences listed above Section 40 encouraging or assisting another person to commit an offence listed in Schedule 2 above Self explanatory this section is liable to the same punishment as if he were convicted of the offence he attempts to commit. A person convicted of an offence under this section is liable to the same punishment as if he were convicted of the offence he incites the other person to commit

Annex B Non-Criminal (Disciplinary) Offences Convictions for these offences should not be recorded on the PNC Convictions for these offences need not be disclosed by applicants on the application form Type of Offences Non Criminal Conduct offences Contrary to Armed Forces Act 2006 Section Section 1 Assisting an enemy Section 2 Misconduct on operations Section 3 Obstructing operations Section 4 Looting Section 5 Failure to escape etc Section 6 Mutiny Section 7 Failure to suppress mutiny Section 8 Desertion Section 9 Absence without leave Section 10 Failure to cause apprehension of deserters or absentees Section 11 Misconduct towards a superior officer Section 12 Disobedience to lawful commands Section 13 Contravention of standing orders Section 15 Failure to attend for, or perform, duty etc Section 16 Malingering Section 17 Disclosure of information useful to an enemy Section 18 Making false records Section 19 Conduct prejudicial to good order and discipline Section 20 Unfitness or misconduct through alcohol or drugs Section 21 Fighting or threatening behaviour, etc Section 22 Ill treatment of subordinate Section 23 Disgraceful conduct of a cruel or indecent kind Section 24 Damage to or loss of public or Service property Section 25 Misapplying or wasting public or Service property Section 26 Definition of public property or Service property Section 28 Resistance to arrest etc Section 30 Allowing escape, or unlawful release, of prisoners etc

Section 31 Hazarding of ship Section 32 Giving false air signals etc Section 33 Dangerous flying etc Section 34 Low flying Section 35 Annoyance by flying Section 36 Inaccurate certification Section 37 Prize offences by officer in command of ship or aircraft Section 38 Other prize offences Section 39 Attempts Section 40 Encouraging and assisting Section 41 Aiding, abetting, counselling or procuring