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2003 No. 2273

DEFENCE

The Armed Forces (Entry, Search and Seizure) Order 2003

  Made 4th September 2003 
  Laid before Parliament 9th September 2003 
  Coming into force 30th September 2003 

The Secretary of State, in exercise of the powers conferred upon him by sections 3(3) and (5), 5(10), 6, 10(13), 11(1) and (2), and 35(1) of the Armed Forces Act 2001[1] hereby makes the following Order:

Citation and Commencement
     1. This Order may be cited as the Armed Forces (Entry, Search and Seizure) Order 2003 and shall come into force on 30th September 2003.

Interpretation
    
2.  - (1) In this Order - 

    (2) For the purposes of this Order, the occupier of premises which are service living accommodation is - 

    (3) A reference in this Order to a numbered section is a reference, unless the contrary intention appears, to that section of the Act.

Provisions relating to search under section 2
     3.  - (1) A service policeman[4] who detains a person or vehicle in exercise of the power conferred by section 2 need not conduct a search if it appears to him subsequently - 

    (2) If a service policeman contemplates a search, other than a search of an unattended vehicle, in the exercise of the power conferred by section 2, it shall be his duty, subject to paragraph (4), to take reasonable steps before he commences the search to bring to the attention of the appropriate person - 

and the service policeman shall not commence the search until he has performed that duty.

    (3) The matters referred to in paragraph (2)(b) are - 

    (4) A service policeman need not bring the effect of article 4(7) or (8) to the attention of the appropriate person if it appears to the service policeman that it will not be practicable to make the record in article 4(1).

    (5) On completing a search of an unattended vehicle or anything in or on such a vehicle in the exercise of the power conferred by section 2 a service policeman shall leave a notice - 

    (6) The service policeman shall leave the notice inside the vehicle unless it is not reasonably practicable to do so without damaging the vehicle.

    (7) Section 2 shall not give a service policeman who is not in uniform a power to stop a vehicle.

    (8) This article applies to vessels, aircraft and hovercraft as it applies to vehicles.

    (9) In this article "the appropriate person" means - 

Duty to make records concerning searches
     4.  - (1) Where a service policeman has carried out a search in the exercise of the power conferred by section 2, he shall make a record of it in writing unless it is not practicable to do so.

    (2) If - 

he shall make it as soon as is practicable after the completion of the search.

    (3) The record of a search of a person shall include a note of his name, if the service policeman knows it.

    (4) If a service policeman does not know the name of a person whom he has searched, the record of the search shall include a note otherwise describing that person.

    (5) The record of a search of a vehicle shall include a note describing the vehicle.

    (6) The record of a search of a person or a vehicle - 

    (7) If a service policeman who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record if he asks for one before the end of the period specified in paragraph (9).

    (8) If - 

the person who made the request shall be entitled to a copy.

    (9) The period mentioned in paragraphs (7) and (8) is the period of 12 months beginning with the date on which the search was made.

    (10) The requirements imposed by this article with regard to records of searches of vehicles shall also apply to records of searches of vessels, aircraft and hovercraft.

Application to searches carried out by virtue of section 4
    
5. Articles 3 and 4 shall apply to the exercise by virtue of section 4 of the powers conferred by section 2 - 

as they apply to the exercise of those powers by a service policeman.

Special provisions as to access
     6. A service policeman may obtain access to excluded material or special procedure material[6] on relevant residential premises for the purposes of an investigation of an offence to which section 5 applies by making an application under Schedule 1 and in accordance with that Schedule.

Application for warrants or orders by live television links
     7. A service policeman may make - 

through live television links or other similar arrangements if it is not reasonably practicable for him to make the application in person.

Search warrants - safeguards
    
8.  - (1) This article and articles 9 and 10 have effect in relation to the issue to service policemen under section 5 or Schedule 1 of warrants to enter and search premises[7]; and an entry on or search of premises under a warrant is unlawful unless it complies with this article and articles 9 and 10.

    (2) Where a service policeman applies for any such warrant, it shall be his duty - 

    (3) An application for such a warrant shall be made ex parte and supported by a statement in writing, which shall - 

    (4) The service policeman shall answer on oath any question that the judicial officer hearing the application asks him.

    (5) A warrant shall authorise an entry on one occasion only.

    (6) A warrant - 

    (7) Two copies shall be made of a warrant.

    (8) The copies shall be clearly certified as copies.

Execution of warrants
     9.  - (1) A warrant to enter and search premises may be executed by any service policeman.

    (2) Such a warrant may authorise persons to accompany any service policeman who is executing it.

    (3) Entry and search under a warrant must be within one month from the date of its issue.

    (4) Entry and search under a warrant must be at a reasonable hour unless it appears to the service policeman executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.

    (5) Where the occupier of premises which are to be entered and searched is present at the time when a service policeman seeks to execute a warrant to enter and search them, the service policeman - 

    (6) Where - 

paragraph (5) shall have effect as if any reference to the occupier were a reference to that other person.

    (7) If there is no person present who appears to the service policeman to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.

    (8) A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

    (9) A service policeman executing a warrant shall make an endorsement on it stating - 

    (10) A warrant which - 

shall be returned to the judicial officer.

    (11) A warrant which is returned under paragraph (10) shall be retained by the judicial officer for at least 2 years from its return.

    (12) If during the period for which a warrant is to be retained the occupier of the premises to which it relates asks to inspect it, he shall be allowed to do so.

Safeguards and execution of warrants - further provisions
    
10.  - (1) Where - 

articles 8 and 9 shall have effect subject to the following provisions of this article.

    (2) Where paragraph (1)(a) applies - 

    (3) Where paragraph (1)(b) applies, the service policeman who applied for the warrant may transmit by any means practicable the information contained in the warrant to the service policeman who is to execute the warrant.

    (4) Where either sub-paragraph (a) or (b) of paragraph (1) applies - 

    (5) In this article, "copy-warrant" means - 

Oaths and affirmations
    
11.  - (1) Before a judicial officer asks any question which a service policeman would be required under article 8(4) to answer on oath, an oath shall be administered to the service policeman.

    (2) If - 

he shall be permitted to make a solemn affirmation instead of taking an oath.

    (3) A person who may be permitted under this article to make his solemn affirmation may also be required to do so.

    (4) Any oath or affirmation shall be administered in the form set out in Schedule 2 by the judicial officer or, where the judicial officer so directs, by any other person acting on his behalf.

Search upon arrest
    
12.  - (1) This article shall apply when a person is arrested under any of the services Acts[8].

    (2) Subject to the following provisions of this article, a service policeman shall have power where this article applies - 

for evidence relating to the offence for which he has been arrested.

    (3) The power to search premises conferred by paragraph (2) is only a power to search to the extent that is reasonably required for the purpose of discovering any such evidence.

    (4) A service policeman may not search premises in the exercise of the power conferred by paragraph (2) unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph on the premises.

    (5) In so far as the power to search conferred by paragraph (2) relates to premises consisting of two or more separate dwellings, it is limited to a power to search - 

    (6) In this article, "relevant residential premises" means - 

Entry and search after arrest
     13.  - (1) Subject to the following provisions of this article, a service policeman may enter and search any premises occupied or controlled by a person who has been arrested under any of the services Acts and is being held in custody without being charged[10], if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates - 

    (2) A service policeman may seize and retain anything for which he may search under paragraph (1).

    (3) The power to search conferred by paragraph (1) is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.

    (4) Subject to paragraph (5), the powers conferred by this article may not be exercised unless an authorising officer has authorised them in writing.

    (5) A service policeman may conduct a search under paragraph (1) without obtaining an authorisation under paragraph (4) if it is likely that, if no search could be carried out before the earliest time by which it would be practicable for him to obtain such an authorisation, the purpose of the search would be frustrated or seriously prejudiced.

    (6) If a service policeman conducts a search by virtue of paragraph (5), he shall inform an authorising officer that he has made the search as soon as practicable after he has made it.

    (7) An authorising officer who authorises a search, or is informed of a search under paragraph (6), shall make a record in writing - 

    (8) In this article, "authorising officer" means - 

General power of seizure
     14.  - (1) The powers conferred by paragraphs (2), (3) and (4) are exercisable by an authorised person on searchable premises.

    (2) The authorised person may seize anything which is on the premises if he has reasonable grounds for believing - 

    (3) The authorised person may seize anything which is on the premises if he has reasonable grounds for believing - 

    (4) The authorised person may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form if he has reasonable grounds for believing - 

    (5) The powers conferred by this article are in addition to any power otherwise conferred.

    (6) Nothing in this Order is to be taken to authorise the seizure of an item which an authorised person has reasonable grounds for believing to be subject to legal privilege.

    (7) In this article - 

Extension of powers of seizure to computerised information
    
15.  - (1) Every power of seizure which is conferred by an enactment to which this article applies on an authorised person shall be construed as including a power to require any information stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form.

    (2) This article applies - 

    (3) In this article, "authorised person" has the same meaning as in article 14.

Access and copying
    
16.  - (1) A person who seizes anything in the exercise of a power conferred by or under Part 2 ("an authorised person") shall, if so required by a person showing himself - 

provide that person with a record of what he seized.

    (2) The authorised person shall provide the record within a reasonable time from the making of the request for it.

    (3) Subject to paragraph (8), if a request for permission to be granted access to anything which - 

is made to the investigator by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the investigator shall allow the person who made the request access to it under the supervision of a supervisor.

    (4) Subject to paragraph (8), if a request for a photograph or copy of any such thing is made to the investigator by a person who had custody or control of the thing immediately before it was so seized, or by someone acting on behalf of such a person, the investigator shall - 

    (5) A person may also photograph or copy, or have photographed or copied, anything which he has power to seize in the exercise of a power conferred by or under Part 2, without a request being made under paragraph (4).

    (6) Where anything is photographed or copied under paragraph (4)(b), the photograph or copy shall be supplied to the person who made the request.

    (7) The photograph or copy shall be so supplied within a reasonable time from the making of the request.

    (8) There is no duty under this section to grant access to, or to supply a photograph or copy of, anything if the investigator has reasonable grounds for believing that to do so would prejudice - 

    (9) In this article - 

Retention
    
17.  - (1) Subject to paragraph (4), anything which has been seized by a person exercising any power of seizure conferred by or under Part 2, including anything taken away by a person following a requirement made by virtue of articles 14 or 15, may be retained so long as is necessary in all the circumstances.

    (2) Without prejudice to the generality of paragraph (1) - 

    (3) Nothing seized under - 

    (4) Nothing may be retained for either of the purposes mentioned in paragraph (2)(a) if a photograph or copy would be sufficient for that purpose.


Ivor Caplin
Parliamentary Under Secretary of State, Ministry of Defence

4th September 2003



SCHEDULE 1
Article 6


SPECIAL PROCEDURE


Making of Orders by Judicial Officers

     1. If on an application made by a service policeman a judicial officer is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 5.

     2. The first set of access conditions is fulfilled if - 

     3. The second set of access conditions is fulfilled if - 

     4. The enactments referred to in paragraph 3(b) are - 

     5. An order under this paragraph is an order that the person who appears to the judicial officer to be in possession of the material to which the application relates shall - 

not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify.

     6. Where the material consists of information contained in a computer - 

     7. For the purposes of articles 16 and 17 material produced in pursuance of an order under paragraph 5(a) shall be treated as if it were material seized by a service policeman.

Notices of applications for orders

     8. An application for an order under paragraph 5 shall be made inter partes.

     9.  - (1) Notice of an application for such an order may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter or by the recorded delivery service.

    (2) For the purposes of this Schedule, the reference to a person's proper address shall be to such address determined in accordance with paragraph 10.

     10.  - (1) Subject to the following provisions of this paragraph, a reference to a person's proper address is to the address of the unit to which he belongs.

    (2) Where a person is on attachment to a unit, a reference to his proper address is to the address of the unit to which he is attached.

    (3) In the case of a person who - 

a reference to his proper address is to his usual or last known place of residence.

     11. Where notice of an application for an order under paragraph 5 has been served on a person, he shall not conceal, destroy, alter or dispose of the materials to which the application relates except - 

until - 

     12. If on an application made by a service policeman a judicial officer - 

     13. A service policeman may seize and retain anything for which a search has been authorised under paragraph 12.

     14. The further conditions mentioned in paragraph 12(a)(ii) are - 



SCHEDULE 2
Article 11


OATHS AND AFFIRMATIONS


     1. The service policeman taking the oath shall hold the New Testament, or if a Jew the Old Testament, in his uplifted hand and shall say, or repeat, after the person administering it, the oath provided in paragraph 5 of this Schedule.

     2. If the service policeman to whom an oath is administered desires to swear in the form and manner in which an oath is usually administered in Scotland, he may do so with uplifted hand and saying, or repeating, after the person administering it, the Scottish oath provided in paragraph 6 of this Schedule.

     3. If the form of oath provided in this Schedule is not appropriate to the religious beliefs of the service policeman taking the oath, an oath may be administered in such form and manner as the service policeman declares to be binding on his conscience in accordance with his religious beliefs.

     4. A service policeman making a solemn affirmation instead of taking an oath shall say, or repeat, after the person administering it, the affirmation provided in paragraph 7 of this Schedule.

     5. The oath shall be sworn in the following form:

     6. The form of Scottish oath shall be the same as the form of oath set out above except that for the words "I swear by Almighty God" there shall be substituted the words "I swear by Almighty God and as I shall answer to God at the Great Day of Judgment".

     7. The form of affirmation shall be the same as the form of oath set out above except that for the words "I swear by Almighty God" there shall be substituted the words "I (state name) solemnly, sincerely and truly declare and affirm".



EXPLANATORY NOTE

(This note is not part of the Order)


This Order deals primarily with the powers of service police under Part 2 of the Armed Forces Act 2001 ("the Act") relating to persons subject to service law. The main provisions are, subject to modifications, equivalent to certain provisions of the Police and Criminal Evidence Act 1984 ("PACE") relating to powers of entry, search and seizure.

Articles 3 and 4 make provision which, subject to modifications, is equivalent to section 2 and 3 of PACE. Article 3 makes provision as to the information that a service policeman must give to the person whom he proposes to search, or the person in charge of the vehicle which he proposes to search, under section 2 of the Act. Article 3 also provides for the information that a service policeman must leave in an unattended vehicle which he has searched under section 2 of the Act. Article 4 concerns the records that must be made after a search under section 2 of the Act has been carried out.

Under article 5, articles 3 and 4 apply to searches carried out by persons authorised to do so under section 4 of the Act as they apply to such searches carried out by service policemen under section 2 of the Act.

Article 6 and Schedule 1 make provision which, subject to modifications, is equivalent to Schedule 1 to PACE. They deal with access to "excluded material" and "special procedure material" as defined in PACE.

Article 7 enables a service policemen who is making an application to a judicial officer for a search warrant under section 5 of the Act or under Schedule 1 to this Order, or for an order under Schedule 1, to do so by live television link or similar arrangements.

Articles 8 and 9 make provision which, subject to modifications, is equivalent to sections 15 and 16 of PACE. There are further modifications in article 10. Those articles relate to the application for and execution of search warrants issued under section 5 of the Act or Schedule 1 to this Order.

Article 11 and Schedule 2 make provision as to the oath to be administered to a service policeman when he is required under article 8(4) to answer questions on oath.

Article 12 makes provision which, subject to modifications, is equivalent to section 32 of PACE in so far as that section relates to the entry and search without a warrant of premises in which a person was when or immediately before he was arrested. Article 13 makes provision which, subject to modifications, is equivalent to section 18 of PACE. That article relates to the entry and search without a warrant of premises occupied by an arrested person.

Articles 14 to 17 make provision which, subject to modifications, is equivalent to sections 19 to 21 and 22(1) to (4) of PACE. Those articles relate to the general power of seizure from searched premises, the powers of seizure in respect of computerised information, and access to, copying of and retention of anything seized under the provisions of this Order or Part 2 of the Act.


Notes:

[1] 2001 c. 19.back

[2] Under section 37, the 1955 Acts means the Army Act 1955 (c. 18) and the Air Force Act 1955 (c. 19) and the 1957 Act means the Naval Discipline Act 1957 (c. 53).back

[3] Under section 37, the 1955 Acts means the Army Act 1955 (c. 18) and the Air Force Act 1955 (c. 19) and the 1957 Act means the Naval Discipline Act 1957 (c. 53).back

[4] By virtue of section 16(1), service policeman means a member of the Royal Navy Regulating Branch, the Royal Marines Police, the Royal Military Police or the Royal Air Force Police.back

[5] For the purposes of Part 2, "commanding officer" is defined by section 16(5).back

[6] By virtue of section 16(1), "excluded material" and "special procedure material" have the same meanings as in the Police and Criminal Evidence Act 1984 (c. 60).back

[7] By virtue of section 16(1), premises includes any place and, in particular, includes (a) any vehicle, vessel, aircraft or hovercraft, and (b) any tent or movable structure.back

[8] By virtue of section 16(1), the services Acts means the 1955 Acts and the 1957 Act.back

[9] The meaning of "service living accommodation" is set out in section 15.back

[10] By virtue of section 11(3), "charged" in relation to a person held in custody is to be construed in accordance with section 75(4) of each of the 1955 Acts and section 47A(4) of the 1957 Act.back

[11] By virtue of section 16(1), the 1984 Act means the Police and Criminal Evidence Act 1984 (c. 60).back

[12] S.I. 1997/15.back

[13] 1 & 2 Geo. 5 c. 28.back

[14] 1968 c. 60.back

[15] 1974 c. 6.back

[16] See section 16(2) for the interpretation for the purposes of Part 2 of references to persons "subject to service law".back



ISBN 0 11 047460 0


  Prepared 11 September 2003


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URL: http://www.bailii.org/uk/legis/num_reg/2003/20032273.html