UK Offence Report

“Service offence”, “Schedule 2 offence”

article 42(3) 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

3 The offences referred to in paragraph (2)(j) are— a an offence within any sub-paragraph of paragraph 12 of Schedule 2 to AFA 2006; b an offence under any of sections 1 to 7, 9 to 11, 16, 17, 19 to 24, 26 to 29 and 32 of the Sexual Offences Act 1956; c an offence under section 128 of the Mental Health Act 1959; d an offence under section 1 of the Indecency with Children Act 1960; e an offence under section 4 or 5 of the Sexual Offences Act 1967; f an offence under section 1 of the Criminal Attempts Act 1981, or at common law, of attempting to commit an offence within any of sub-paragraphs (a) to (e) above; g an offence under section 1 of the Criminal Law Act 1977, or at common law, of conspiracy to commit an offence within any of sub-paragraphs (a) to (e) above; h an offence at common law of incitement to commit an offence within any of sub-paragraphs (a) to (e) above; i an offence under Part 2 of the Serious Crime Act 2007 where the offence (or one of the offences) which the offender intended or believed would be committed is an offence within sub-paragraph (a) above.

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 This is the text as originally made; later amendments are not shown here.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
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

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

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 42(3)?

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. Doing what the provision prohibits, or failing to do what it requires under the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009.

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 128 of the Mental Health Act 1959.

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 0.64.

Basis
the provision says a person “commits an offence”; the provision says an offence is committed “if” something happens
Confidence
0.64 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