UK Offence Report

“Service offence”, “Schedule 2 offence”

article 42(2) of The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

2 Paragraph (1) does not apply in relation to section 113(4) of that Act (definition of “Schedule 2 offence”); but in that Part “Schedule 2 offence” includes the following SDA offences— a an offence under section 24 of AA 1955 or AFA 1955 or section 2 of NDA 1957 (misconduct in action); b an offence under subsection (1)(a), (b), (c), (d) or (f) of section 25 of AA 1955 or AFA 1955 or of section 3 of NDA 1957 (assisting the enemy); c an offence under section 26(1) of AA 1955 or AFA 1955 or section 4(1) of NDA 1957 (obstructing operations); d an offence under section 30, 31 or 32 of AA 1955 or AFA 1955 or section 5, 9 or 10 of NDA 1957 (looting, munity, failure to suppress mutiny); e an offence under section 37 of AA 1955 or AFA 1955 or section 16 of NDA 1957 (desertion) where the accused intends to avoid a period of active service within the meaning of section 8 of AFA 2006; f an offence under section 44A(1)(f) of AA 1955 or AFA 1955 or section 29A(1)(f) of NDA 1957 (causing sequestration etc of aircraft) where the offender acts wilfully or with wilful neglect; g an offence under section 48A of AA 1955 or AFA 1955 or section 19 of NDA 1957 (loss or hazarding of ship); h an offence under section 49 of AA 1955 or AFA 1955 or section 20 of NDA 1957 (dangerous flying etc) where the offender acts wilfully or with wilful neglect; i an offence under section 68 of AA 1955 or AFA 1955 or section 40 of NDA 1957 of attempting to commit an offence within any of sub-paragraphs (a) to (h) above; j an SDA civil offence as respects which the corresponding civil offence is an offence mentioned in paragraph (3) below.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
obstructing an official exercising a power
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (wilfully).

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: mens rea word in the offence-creating words: wilfully.

What would breach article 42(2)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Refusing to let an inspector onto premises they are entitled to enter under the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009.
  2. Sending an official away, or telling staff to say nothing, where the power being exercised does not depend on anyone's consent.
  3. Physically blocking an examination, or removing something an officer has said they intend to inspect.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to section 24 of AA 1955 or AFA 1955 or section 2 of NDA 1957 (misconduct in act.

penalty is that of the referenced enactment; not stated in this instrument.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
23 April 2009
In force from
24 April 2009
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes transitional provision in connection with the coming into force of the Armed Forces Act 2006 (c. 52), and the repeal of the Army Act 1955 (c. 18), the Air Force Act 1955 (c.19), the Naval Discipline Act 1957 (c. 53) and related legislation. Schedule 2 makes transitory provision for the operation of the 2006 Act, and certain related legislation, until certain provisions not yet commenced come into force.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person “commits an offence”; the provision says an offence is committed “if” something happens
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source