Is there a power of entry for the offences of AWOL or desertion?

19 February 2020

Not reviewed after the date of publication

Question:

A member of the armed services who has a marker for offences of desertion and AWOL is believed to be staying at an address, is there a power of entry under section 17 of PACE?

Answer: 

The power of entry for the purposes of arrest under sections 17(1)(b) or (d) of PACE, does not apply to the offence of desertion and AWOL. A person who is the suspect of an offence of desertion or AWOL may not be deemed 'unlawfully at large' for the purposes of section 17(d). 'Unlawfully at large' in the context of section 117(d) is held to mean 'persons who have been lawfully detained and have escaped detention'.

The offences of desertion and AWOL are created under the Armed Forces Act 2006:

Offence of desertion – section 8 of the Armed Forces Act 2006
Offence of AWOL – section 9 of the Armed Forces Act 2006

These offences are only triable by Martial Court and as such this Act contains specific provisions for powers to arrest and powers to enter premises, which are for clearly defined persons only.

Please see below the relevant powers:

Section 67 – power of arrest for service offence by a member of the regular forces or the reserved forces

67(1) A person who is reasonably suspected of being engaged in committing, or of having committed, a service offence may be arrested in accordance with subsection (2), (3), (4) or (5) by a person subject to service law.

Person subject to service law means members of regular forces and members of reserved forces. Service offence has the meaning given by section 50 and includes the offences of desertion and AWOL

Section 69 – power of arrest by a service policeman in anticipation of commission of service offence

69(1) A service policeman may arrest a person whom he reasonably suspects of being about to commit a service offence.

Service policeman – a member of a service police force. A service police force is (a) the Royal Navy Police; (b) the Royal Military Police; or (c) the Royal Air Force Police;

Section 90 – entry for the purpose of arrest by a service policeman

90(1) A service policeman may for the purpose of arresting a person enter and search premises within subsection (2), but only if he has reasonable grounds for believing that the person is on the premises.

Section 91 – entry for the purpose of arrest by other persons

91(1) An officer may authorise a person subject to service law (other than a service policeman) to exercise, in relation to premises within subsection (2), the powers conferred by section 90(1) on a service policeman; but this is subject to subsection (3).

A person subject to service law - members of regular forces and members of reserved forces.

Section 313 – arrest by civilian police under warrant of judge advocate

313(1) Where a judge advocate is satisfied by evidence given under oath or affirmation that there are reasonable grounds for doing so, he may issue a warrant for the arrest of a person who is reasonably suspected of having committed a service offence.

313(2) A warrant issued under this section -

(a) shall be addressed to an officer or officers of a UK police force or British overseas territory police force; and
(b) shall specify the name of the person for whose arrest it is issued and the offence which he is alleged to have committed.

Section 314 – arrest by civilian police of deserters and absentees without leave

314(1) A civilian policeman may arrest without a warrant a person (a relevant suspect) who is reasonably suspected of being a person subject to service law who has deserted or is absent without leave.

Civilian policeman means an officer of a UK police force or British overseas territory police force, other than a force or body constituted in Gibraltar.

It is our interpretation of this legislation that the only power that is available to a civilian policeman with regard to a person who has deserted or is AWOL, is the power to arrest, where the arrest is in accordance with sections 313 or 314 of the Armed Forces Act 2006.

 

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