Civil Power BRd 2

CHAPTER 39

CIVIL POWER

(MOD Sponsor: FLEET DCS LAW)

CONTENTS

Para
3901. Arrest by the Civil Power
3902. Report of Arrest, Summons, Conviction or Caution by the Civil Power
3903. Trial by the Civil Power - Attendance of Officer
3904. Ratings Admitted to Bail
3905. Expenses of Rejoining Ship after Trial
3906. Consequences of Conviction by the Civil Power
3907. Detention in a Young Offender’s Institution
3908. Bearing of Ratings in Civil Custody
3909. Accounting Action Following Civil Conviction of an Officer
3910. Formal Police Cautions

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CHAPTER 39

CIVIL POWER

3901. Arrest by the Civil Power

1. Commanding Officer’s Responsibilities. In the United Kingdom the Commanding

Officer is to afford every facility to the civil power in detecting and apprehending persons
serving on board whose arrest is required on any criminal charge, but he is to require any
constable, or other civil officer coming on board to search for or apprehend such persons,
to produce his warrant or to show satisfactory evidence of the character in which he acts.

2. No officer or rating in lawful custody on board can be claimed by the civil authorities
for trial in a civil court, except on a writ of habeas corpus or on an order by the Secretary
of State. He may, however, be surrendered voluntarily to answer a criminal charge if such
charge is in respect of a civil offence more serious than the naval offence for which he is
held in custody on board. Normally it would be inappropriate to refuse to surrender a man
required to appear at a Crown court.

3. If the Commanding Officer refuses to surrender a person to a warrant, summons or

other process, he is at once to report to the Commander-in-Chief (or, in his absence, the
senior officer present) giving his reasons and details of the offence, if any, with which the
person is charged ashore and of the offence for which he is under arrest or in custody on
board.

4. In foreign ports the British Consul should be consulted; in countries which are
members of the North Atlantic Treaty Organization reciprocal agreements will be in force
regarding arrest and trial for offences committed on shore. (See also BR 11, Manual of
Naval Law.)

5. Criteria for Trials. The criteria by which the police decide whether a sailor who
commits a civil offence on shore should be dealt with by the civil courts or handed over to
the naval authorities are set out in BR 11, Manual of Naval Law.

6. Divisional Officer’s Duties. Guidance on the Divisional Officer’s duties in these

circumstances is given in Para 3909. and BR 11, Manual of Naval Law.

7. Court Attendance. Attendance of personnel at civil courts and the serving of writs,
summonses, and other process is dealt with in Chapter 58.

3902. Report of Arrest, Summons, Conviction or Caution by the Civil Power

1. Any officer or rating who is arrested by the civil power, or summoned on a criminal
charge, is to report such arrest or summons to his Commanding Officer without delay and
is subsequently to report the outcome, including any award of a Formal Police Caution
(FPC), (See also Para 3910.). Motoring offences (including fixed penalty offences) need
not be reported unless they result in a court appearance.

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2. It is important that information about pending cases in civil criminal courts, in UK or

overseas, relating to Service Personnel be available to the 2SL Command Secretariat, to
enable Ministers and senior management to be informed as necessary and to enable
accurate and timely responses to media inquiries. Commanding Officers are requested
therefore to ensure that FLEET DCS Law Disc1b is informed immediately (either through
their command chain, or by copying FLEET DCS Law Disc1b on any signal) of any
pending civil criminal case, in UK or overseas, which may attract adverse publicity or bring
the Service into disrepute. Reporting can take place at the arrest, charge, summons,
appearance in court or conviction stages of an incident involving an officer, rating or other
rank. However, information should be provided as soon as practicable and as early in the
process as possible.

3. The types of offences that are likely to meet the “attracting adverse publicity” or
“bringing the Service into disrepute” criteria are: murder, rape, and case involving serious
or fatal injury, sexual or indecency offences involving children, drug or drug-linked
offences, firearms offences or if an offence was racially motivated. This list is not
prescriptive or exhaustive and is provided for guidance and example only.

4. Where a conviction or Formal Police Caution (FPC) has resulted, consideration must
be given to the award of a penalty which may range from censure to administrative
discharge (See also Para 3906., Para 3909., Para 3910. and Para J.5808.) The decision
to apply for a penalty should not be delayed because the individual is required to report
the conviction or FPC to a professional body such as the General Medical Council or the
Bar Council. The authority awarding the penalty may, upon any representation submitted
by the individual, consider whether there are any exceptional reasons relating to the
offence or the offender to justify delaying the imposition of the penalty until after any
decision of a professional body. If naval penalty action is taken before the decision of a
professional body, any subsequent decision of those bodies may result in further and
separate administrative action by the Service.

5. Officers. When forwarding reports of officers convicted by the civil power, or awarded
a FPC, full details of the circumstances leading to the conviction or FPC should be
reported together with any necessary comments and with recommendations. The officer
concerned is to be invited to submit his representations and where he does so these
representations are to be forwarded in accordance with the procedure in Article 3804
sub para 4. If he declines to do so, this should be stated.

6. Sex Offences. If a civil offence has been committed that results in an officer, rating or
other rank being subject to the notification requirements of the Sex Offender’s Act 1997,
FLEET DCS Law Disc1b is to be informed as soon as practicable.

3903. Trial by the Civil Power - Attendance of Officer

1. Attendance. The attendance of an officer or senior rating to watch the civil trial of an
officer or man in the United Kingdom is at the discretion of the accused’s Commanding
officer, who is to consider the gravity of the charge, the distance from the ship to the court
and the exigencies of the Service. An officer ought normally to attend trial before a Crown
court and the more serious cases tried by courts of summary jurisdiction. Where a rating
is being tried and it is appropriate for an officer or rating to attend the trial, it is preferable
for the man’s Divisional officer or Divisional senior rating to attend the trial.

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However, on occasion it may be more convenient for an officer or senior rating to attend
from a ship or establishment nearer to the court than the accused’s ship. Unless requested
by the civil authorities, the attendance of an officer or senior rating in court is not necessary
when an officer or man is charged before a magistrate’s court in the United Kingdom with
any minor traffic offence committed in respect of a privately-owned vehicle. If a Service
vehicle is involved an officer or senior rating should, if possible, attend. Commands are
free to reach agreement with magistrates’ courts, through the Clerks to the Justices, about
the non-attendance of an officer or senior rating in cases where a rating is charged with
drunkenness (other than in charge of a motor vehicle or breathalyser offence) or with a
minor breach of the peace.

2. Testifying. If called upon by the court to testify to the general character of the
accused, the officer or senior rating who attends is not to give information of minor offences
against the discipline of the Service unless specially required by the court to do so, since
the nature of these offences is liable to be misunderstood to the prejudice of the accused.
For the same reason he is not to take a rating’s Conduct Record to court. He should be
prepared to answer the question of whether the accused’s Commanding Officer would, in
the event of conviction, apply for discharge (SNLR or SHORE) as a naval penalty; any
statement so made would not be binding, as the final decision rests with higher authority.
If a court is considering the award of a Community Service Order or other penalty which
would have the effect of restricting a serviceman’s mobility, the officer or senior rating
present should say that if the rating is retained, he must at all times be available to serve
in any ship or establishment at home or overseas. As a general rule therefore, no
assurance should be given to the court that his duties can be arranged to allow compliance
with such a penalty. Officers and senior ratings attending trials should make it clear to the
accused that they are not there in a defending capacity but only to carry out the above
duties.

3. Information to be Obtained. Before leaving the court, the officer or senior rating is to
obtain sufficient information from an official, who will normally be the clerk of the court or
one of his staff, to enable Form C.57 to be completed by the Commanding Officer when
required (see 3906 sub para 7). Such information will usually include the precise wording
of the charge or charges, an outline of the circumstances of the offence or offences, an
outline of any mitigation offered by the defence, the exact terms of the order of the court,
if fined, whether the fine has been paid, whether the accused has been remanded on bail,
any conditions imposed on bail and, if bail is refused, the reason(s) for the refusal to grant
bail. If a Probation Officer has prepared a Pre-Sentence Report (PSR) for the court, any
part of that report which is read openly in court may be reported for the Information of the
Commanding Officer. The PSR, as a court document, should not be communicated to the
Commanding Officer, unless the accused discloses it voluntarily.

4. General Character References. Where an officer or senior rating does not attend the
court, the police should be informed of the general character of the accused and be
requested to communicate the decision of the court in due course (so that action may be
taken under Para 3906.).

5. Trials Abroad. Clause 1 should also apply, as far as possible, to cases tried in other
parts of the Commonwealth and in foreign countries.

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3904. Ratings Admitted to Bail

1. When a rating has been arrested by the civil power and afterwards remanded on bail,
and the ship to which he belongs leaves the port before he is dealt with, he is, if possible,
to be lent to a ship remaining at the port. If no naval accommodation is available, he is to
be handed over to the civil authorities before the ship leaves.

2. Sureties or Securities for bail cannot be provided from naval funds in the United
Kingdom. In certain countries abroad it may be provided but only in accordance with
Para 5812.

3905. Expenses of Rejoining Ship after Trial

1. A rating who is left behind by his ship because of proceedings against him in a civil
court, if he is subsequently acquitted or convicted, is, in the absence of an early
Government opportunity, liable for the whole cost of rejoining his ship. In cases where the
rating is acquitted, the cost of rejoining his ship will subsequently be met by public funds.

3906. Consequences of Conviction by the Civil Power

1. Time in Custody. When a rating appears before a civil court and is sentenced, placed
on a Community Rehabilitation Order, discharged absolutely or discharged conditionally,
an offence has been proved against him and he will be liable to forfeit pay and service for
the time spent in civil custody and he may incur a naval penalty under the provision of this
article.

2. Forfeiture of Pay and Service. A rating is to forfeit one day’s pay and service for each
day (or part of a day) during which he is detained by the civil power as part of the sentence.
He will also, as a general rule, forfeit pay and service on the same scale for time spent in
custody while awaiting and/or attending his trial, but only if the absence interferes with the
performance of his normal duties on that day; and the Commanding Officer may at his
discretion remit his forfeiture altogether if the loss of services is trivial and may reduce it if
the absence is spread over a number of days and the full forfeiture would in his opinion be
excessive. No rating shall forfeit more than one day’s pay and services for any one
calendar day. (See Clause 11 - Royal Marines, soldiers and airmen.)

3. Forfeiture Periods. There may be three or more separate periods for which a rating
forfeits pay and time in respect of a single conviction:

a. From the date of his arrest (unless he is on leave at the time) or from the expiration
of his leave (if he is arrested during leave and is still in custody when his leave
expires).

b. From the date of surrender to the court on bail (if he is allowed to return to his ship
pending trial).

c. From the date of a sentence of imprisonment, etc. Any such periods are to be
reported by C57 and details recorded in the rating’s Conduct Record (S3300d)
(see BR 8748, Rating’s Terms of Service)

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4. Naval Penalties.

a. These penalties are based on the principle that any employer is entitled to take
action when one of his employees is convicted by a civil court of an offence which
may reflect on the employee’s character, trustworthiness or reputation.

b. In the light of a civil conviction, an employer will consider whether:

(1) He can continue to employ the offender.

(2) The offender is fit to hold a position of trust or command.
(3) The offence needs to be reflected in any reference he may give.
(4) The offence is serious enough to warrant a Career Check.

c. Similar considerations apply to naval personnel. A Commanding Officer may not

punish a rating again for an offence for which he has already been convicted by
the civil power, nor may he take any action based on his opinion about the
adequacy of the sentence. However, the nature of the offence may show, either
by itself, or when taken in conjunction with an unsatisfactory naval record that the
rating:

(1) Is not fit to remain in the RN; or

(2) Is not fit to continue to hold his current rate; or
(3) Can no longer be regarded as of good character or conduct so that it would
be unfair to those with unblemished records if this were not reflected in a
Career Check (cc).

d. If one of the foregoing considerations is judged by the Commanding Officer to

apply in any particular case, he should take action to initiate one or more of the
following:

(1) Discharge SNLR.

(2) Discharge SHORE.
(3) Reversion with the option of discharge SHORE.
(4) A Career Check. (See BR 8748, Rating’s Terms of Service)

e. Discharge SHORE will normally be appropriate in the case of c sub para (1) above
if the civil offence had no connection with the RN, unless the offence was serious
and brought the Service into disrepute.

f. No naval penalty is to be initiated if:

(1) None of the considerations in c sub para (1) - (3) above applies.

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(2) The offence was committed before the rating joined the RN.
(3) The rating is committed to prison for default in payment of court orders or for
other forms of contempt of court. In these circumstances, however, forfeiture
of pay and service will apply for the time spent in custody.

g. Naval penalties following Formal Police Caution - See Para 3910.

5. Naval Penalties - Consequences. Attention is drawn to the following facts:

a. Discharge SNLR as a naval penalty will automatically incur a Career Check and
entail the forfeiture of the Long Service and Good Conduct Medal, if held (see
BR 11).

b. Reversion as a naval penalty automatically incurs a Career Check.

c. A Career Check may render a rating ineligible for the Long Service and Good
Conduct Medal, but it will not entail the loss of the medal, if held, unless as a
consquence of being Discharged SNLR. Dependent upon a rating’s length of
service and previous record, it may also preclude promotion/advancement for 6
months, the award/ restoration of Good Conduct Badges and the removal of ‘R’.
It may have no direct consquence so far as recent entrants are concerned. (See
BR 8748 Chapters 6 and 7)

6. Admission of Guilt Without Appearance in Court. Some minor offences may be

dealt with by magistrates’ courts in the United Kingdom on the basis of a plea of ‘Guilty’
submitted by letter without the attendance of the accused. And in England, Wales and
Northern Ireland, the civil police may, without bringing the case to court, deal with a person
who admits an offence by awarding him a Formal Police Caution. In both types of case, a
naval penalty may be imposed in accordance with Clause 4. Naval penalty action may also
be taken in respect of similar cases which occur in other countries; the crucial factor is
whether an admission of guilt is involved.

7. Reports on Form C.57. When the Commanding Officer considers that either penalty
(1), (2) or (3) in Clause 4d is justified, he should submit his proposal, with a report of the
trial, including the information specified in 3903 sub para 4, on Form C.57 to the
Commander-in-Chief, Deputy Commander-in-Chief, Flag Officer Maritime Aviation, Flag
Officer Training and Recruiting, Flag Officer Sea Training, Flag Officer Scotland, Northern
England and Northern Ireland, Commander Operations or Chief-of-Staff (Support) to
Commander-in-Chief Fleet as appropriate for approval. The authority to approve penalties
may be delegated to an officer not below the rank of Captain. The rating is to be informed
that approval is being sought to impose a naval penalty and is to be given the opportunity
to make any representations he may wish on the subject. Any such representations are to
be forwarded with the C.57. If the Commanding Officer considers that the proper penalty
is reversion, he must remember that it will be necessary to give the rating the option of
discharge SHORE. Before this can be done, the approval of the appropriate authority
given above must be obtained. In such a case the C.57 should indicate the rate to which
the Commanding Officer considers that the rating should be reverted. The C.57 should be
sent to the Commander-in-Chief, Deputy Commander-in-Chief, Flag Officer Maritime
Aviation, Flag Officer Training and Recruiting, Flag Officer Sea Training, Flag Officer
Scotland, Northern England and Northern Ireland, Commander Operations or Chief-of-
Staff (Support) to Commander-in-Chief Fleet as appropriate, with a copy of the rating’s
Service Certificate, Records 3 (Forms S3300c) and Conduct Record (Form S3300d).

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On receipt of the necessary authority, the Commanding Officer should inform the rating
that approval has been given for him to be reverted to the particular rate, but that, if he
prefers, he may be discharged SHORE instead and that he has forty-eight hours in which
to make up his mind. At the end of that period he is to be discharged (see BR 8748,
Rating’s Terms of Service) or reverted accordingly without further reference to higher
authority. If the Commanding Officer considers penalty (4) in Clause 4d appropriate and
he is of the rank of Captain, he may approve the imposition of the penalty himself on Form
C.57. If below the rank of Captain, he should seek the approval of the Commander-in-
Chief, an officer of Flag rank or an officer of Captain’s rank in the administrative chain of
command, by submitting a report on Form C.57 together with all the documents including
any representations by the rating, as for penalty (1), (2) or (3) above. If such approval is
likely to be delayed, the approval of the senior officer present will suffice, provided he is of
at least Captain’s rank. Where a civil conviction has resulted in the award of a custodial
sentence, whether suspended or committed, the decision as to what consequential naval
penalty should be awarded is to be taken at no lower than Flag Officer level. Form C.57
action following Formal Police Caution - see Para 3910.

8. Representations. If the penalty proposed is one which the Commanding Officer can
himself approve, the rating is to be given the opportunity to make oral representation at
this stage and before final decision is made and communicated to him. Every man is to be
told formally by his Commanding Officer of any penalty imposed upon him. When he
appears before the Commanding Officer for this purpose, he should not be treated as a
defaulter but should keep his cap on and be dealt with after ‘Requestmen’. If the rating is
in a civil prison, the decision should be communicated to him in writing.

9. Records. Particulars of naval penalties and forfeitures of pay and service are to be
noted on the Unit Record and reported to the Director Naval Pay and Pensions Division,
Centurion Building, on Form C.57 and recorded on the Conduct Record (Form S3300d) in
accordance with the instructions contained in Chapter 34 of BR 1950, Naval Pay
Regulations and Chapter 6 of BR8748, Ratings Terms of Service.

10. Numbering of Records. Forms C.57 should be numbered consecutively throughout

the commission and should be forwarded with the return of punishments (Forms S.181)
(see BR 11, Manual of Naval Law, Chapter 11). Ships in permanent commission should
start a new series on the 1 January of each year. Where forfeiture of pay and service is not
involved and no Service penalty is awarded, the Commanding Officer is to record ‘nil
Service penalty’ along with any observations he or she may wish to make at section B of
Form C57. Form C57 is not to be forwarded for computer input but copies are to be
included in the punishment return and the individual’s Conduct Record.

11. Royal Marines, Soldiers and Airmen. These arrangements will apply to Royal
Marines, soldiers and airmen who may be found guilty by the civil power while subject to
the Naval Discipline Act. They will similarly apply to Royal Marines not so subject, except
that the forfeiture of pay will relate solely to any period in civil custody under sentence, and
any proposal for discharge SNLR or SHORE with or without the option of reversion, should
be submitted to the Commander in Chief Fleet (FAO DACOS (Manning)) (see also
BR 1283, Royal Marines Instructions).

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12. Army Act. Ratings serving at Royal Marines establishments under the Army Act
should be dealt with in the same way as Royal Marines, except that applications for
discharge SNLR or SHORE, with or without the option of reversion, will require the
approval of the Commander-in-Chief Fleet, Commander-in-Chief Naval Home Command.

13. Appeal to Higher Court. When notice of appeal to a higher court against conviction
is given, action regarding any naval penalty which it is proposed to impose should be
deferred pending the result of the appeal, but action should not be deferred if the
conviction is established and the appeal is against sentence only, unless in the
Commanding Officer’s opinion, it is not practicable to decide on naval penalties, without
knowing the court’s final decision on sentence, in which case approval is to be sought for
this course of action from the Commander-in-Chief. If the rating returns to duty pending
the hearing of the appeal, he should be unaffected by the decision in the first court. If the
conviction is upheld on appeal, any naval penalty which may then be approved should take
effect as if there had been no appeal.

3907. Detention in a Young Offender’s Institution

1. When a rating is convicted by the civil power and awarded a sentence at a Young
Offender’s institution, full particulars, together with details of any charge outstanding
against him in respect of a Service offence, are to be reported to the Ministry of Defence
(FLEET DCS LAW DISC) through the usual channels. The report is to be accompanied by
a copy of the rating’s Service Certificate, the Conduct Record Sheet (see BR 11, Manual
of Naval Law) and Form C.57.

3908. Bearing of Ratings in Civil Custody

1. Ratings against whom an offence has been found proved by the civil power, whether
sentenced to imprisonment or not, are normally to continue to be borne on the books of
the ship to which they belong.

3909. Accounting Action Following Civil Conviction of an Officer

1. The Commanding Officer is to ensure that any necessary accounting action is taken
following the civil conviction of an officer.

3910. Formal Police Cautions

1. Award of Formal Police Cautions. The civil police of England, Wales and Northern
Ireland have the discretion in certain circumstances not to put a case to the Crown
Prosecution Service, but to award a Formal Police Caution (FPC) instead. FPCs are not
categorized as convictions, and can only be issued when an offender admits the offence,
consents to the caution and signs a document to that effect. For Scotland see 3910
sub para 11.

2. Comparison with Service Discipline. A number of factors are taken into account by
the police before a FPC is issued, including the seriousness of the offence. However, use
of FPCs is being made in cases which would be regarded as having a serious effect on
naval discipline - for example, gross indecency, theft and unlawful possession of drugs.

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3. RN policy on FPCs. The following policy is to apply when a FPC has been issued:

a. Personnel are required to report to their Commanding Officer any FPC which has
been awarded to them in the same way as they are to report any arrest.

b. No Service prosecution under the Naval Discipline Act 1957 shall be instituted for
an offence for which a FPC has been awarded. The FPC is to be regarded as
having disposed of the disciplinary aspects of that offence.

c. Naval Penalty action in accordance with 3906 sub para 4 is to be considered

following the award of a FPC in the same way as for a civil court conviction.
Forfeiture of pay and time is not to be awarded.

4. Procedures for Naval Penalty Action. Before imposing a Naval Penalty, the
Commanding Officer is to obtain a copy of the police record of caution including the form
of consent signed by the offender. The latter will contain a signed admission and provide
details of the offence. If a copy of the police record of the caution cannot be obtained, the
Commanding Officer is to ask the police authority for written confirmation of the offence for
which the FPC was issued and of the admission of the offender that he or she had
committed the offence. The offender is to be informed of the Naval Penalty action (in
accordance with 3906 sub para 7 and 3906 sub para 8 as appropriate.)

5. The police record of caution, or written confirmation, is to be forwarded with the C.57
(and other accompanying documentation required by 3906 sub para 7) whenever
approval of higher authority is required for the Naval Penalty proposed.

6. When Naval Penalty action is being contemplated the following additional factors are
to be taken into consideration:

a. FPCs by their nature indicate that the police have formed the view that the offence
is not serious enough by civilian standards to justify formal criminal proceedings;
and

b. the absence of a Court sentence will result in one of the factors usually relevant
to determination of the appropriate penalty being unavailable. It should be borne
in mind that there is an increasing use being made of FPCs and that many
offences which might be considered minor in civilian life are treated more
seriously in the Service.

7. In cases of doubt concerning the appropriate Naval Penalty action legal advice should
be sought. A claim by an offender that there should be no Naval Penalty as he or she did
not commit the offence will seldom be accepted; the documentation used by police forces
is normally explicit in requiring an admission of guilt.

8. A copy of the FPC is to be attached to the C57. Where no Service penalty is awarded,
the Commanding Officer is to record ‘nil Service penalty’ along with any observations he
or she may wish to make at section B of Form C57. Form C57 is not to be forwarded for
computer input but copies are to included in the punishment return and the individual’s
Conduct Record.

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9. Officers. Administrative action should be taken against officers awarded FPCs in the
same way as if they had been convicted in court. They should normally expect to receive
an administrative censure, but administrative discharge may also be awarded if the nature
of the offence demonstrates that the officer is unfit to continue to hold his or her
commission.

10. Rehabilitation of Offenders Act. As a FPC is not a conviction, the Rehabilitation of

Offenders Act 1974 does not apply. However under the Home Office Guidelines on
Cautioning, civil police records will generally be retained for three years for the purpose of
citing them in court should the individual be convicted of a further offence.

11. Security Aspects. Commanding Officers are to consider the possible personnel
security implications of offences that result in the award of a FPC. In cases which indicate
an offence of potential security concern the submission of a security after-care report to
DNSylc in accordance with CB 4005 Vol 11 will be appropriate.

12. Scotland. In Scotland the sanction which corresponds to the FPC is the Fixed
Penalty. Unlike a FPC a Fixed Penalty does not involve an admission that an offence has
been committed, therefore the above provisions do not apply to Fixed Penalties.

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