Defence Act 1954

Offences in relation to courts-martial, etc.

161

161. (1) In this section, the expression “ service tribunal” means—

( a) a court-martial,

F126 [ ( b ) an officer, pursuant to section 177, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life,

( c ) a commanding officer, pursuant to section 178, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life, ]

( d) an officer taking a summary of evidence in accordance with regulations made under section 184,

( e) a court of inquiry.

(2) Every person subject to military law—

( a) who, being duly summoned or ordered to attend as a witness before a service tribunal, makes default in attending, or

( b) who refuses to take an oath or make an affirmation lawfully required by a service tribunal to be taken or made, or

( c) who refuses to produce any document in his power or control lawfully required by a service tribunal to be produced by him, or

( d) who refuses when a witness to answer any question to which a service tribunal may lawfully require an answer, or

( e) who uses insulting or threatening language or causes any interruption or disturbance in the proceedings of a service tribunal, or

F127 [ ( ea ) who communicates with the Director, a member of his staff (including a prosecuting officer), a member of a court-martial board, a military judge or a witness in any proceedings under this Act for the purpose of influencing, directly or indirectly, any decision relating to the performance of their functions, including, as appropriate, a decision to withdraw or not to institute such proceedings or any particular charge in such proceedings or the conduct or trial of any such proceedings, or

( eb ) who fails, refuses or neglects to comply with a direction of the military judge under section 195, or

( ec ) who, by act or omission, obstructs or hinders a service tribunal in the performance of its functions, or ]

F128 [ ( f ) who does or omits to do any other thing, which, if the service tribunal were a civil court having power to commit for contempt, would be contempt of that court, ]

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F129 [ for any term not exceeding two years ] or any less punishment awardable by a court-martial.

F130 [ (3) If the Director, a member of his staff (including a prosecuting officer), a member of a court-martial board, a military judge or a witness in any proceedings under this Act is of the opinion that a communication is in breach of subsection (2)( ea ) of this section, it shall be the duty of that person not to entertain the communication further.

(4) ( a ) In the case of the Director or a member of his staff, subsection (2)( ea ) of this section does not apply to

(i) communications made by a person who is a complainant in proceedings for, or has been charged with, an offence under this Act or believes that he is likely to be charged with an offence under this Act, or

(ii) communications made by a person involved in the matter either personally or as legal or medical adviser to a person involved in the matter or as a social worker or a member of the family F131 [ or the civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ] of a person involved in the matter.

( b ) In this subsection member of the family means spouse, parent, grandparent, step-parent, child (including a step-child or an adopted child), grandchild, brother, sister, half-brother, half-sister, aunt, uncle, niece or nephew of the person concerned;

spouse means each person of a couple in relation to the other;

couple means a married couple or a man and woman who are not married to each other but are cohabiting as husband and wife.

(5) Subsection (2) of this section shall apply in relation to the summary disposal of charges under section 177C, 178C or 179C, as the case may be, as it applies to a service tribunal and for the purposes of such application references in the said subsection (2) to a service tribunal shall be construed as references to the summary disposal of charges under section 177C, 178C or 179C, as the case may be. ]

Annotations:

Amendments:

F126

Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 18(a), S.I. No. 254 of 2008.

F127

Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 18(b)(i), S.I. No. 254 of 2008.

F128

Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 18(b)(ii), S.I. No. 254 of 2008.

F129

Inserted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4 (e), commenced on enactment.

F130

Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 18(c), S.I. No. 254 of 2008.

F131

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 170 and sch. pt. 5, item. 3, S.I. No. 648 of 2010.

Modifications (not altering text):

C46

Certain records exempted from application of Freedom of Information Act 2014 (14.10.2014) by Freedom of Information Act 2014 (30/2014), s. 42(a)(ii), commenced on enactment.

Restriction of Act

42. This Act does not apply to—

(a) a record held by— ...

(ii) a service tribunal within the meaning of section 161 of the Defence Act 1954,

and relating to, or to proceedings in, a court or such a tribunal, other than—

(I) a record that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal, or

(II) a record relating to the general administration of the courts or the offices of the courts or such a tribunal or any offices of such a tribunal,

...

Editorial Notes:

E25

Previous affecting provision: certain records exempted from application of Freedom of Information Act 1997 (21.04.1998) by Freedom of Information Act 1997 (13/1997), s. 46(1)(a)(iii), commenced as per s. 1(2); repealed (14.10.2014) by Freedom of Information Act 2014 (30/2014), s. 5 and sch. 4, commenced as per s. 1(2).