The Visiting Forces Act 1952 ("the Act") together with the Visiting Forces and International Headquarters (Application of Law) Order 1999 make provision for dealing with offences committed by members of visiting naval, military and air forces from certain listed countries by their own service authorities and service courts rather than by United Kingdom authorities and courts.
The United Kingdom courts also retain jurisdiction in respect of offences committed by visiting forces within the United Kingdom or on board any of Her Majesty's ships or aircraft. This jurisdiction is not excluded by the Act.
As a result the potential exists for conflict between the United Kingdom authorities and courts and the service authorities and courts of the visiting forces country ("the service court") as to which jurisdiction should deal with offences committed in the United Kingdom by members of that country's visiting force or by other personnel who are subject to the service court's jurisdiction.
The countries which are within the scheme set up by the Act are set out in Section 1 Visiting Forces Act 1952 and in Part ll of Schedule I to the Visiting Forces and International Headquarters (Application of Law) Order 1999.
Remember that if the service court would not have jurisdiction then the United Kingdom court will deal with the case. In particular, in times of peace, the United States Court Martial has no jurisdiction to deal with cases involving civilian employees of United States forces nor can it deal with the dependants of United States forces personnel.
Section 3 of the Act sets out in detail when the service court will have the primary right to exercise jurisdiction to deal with a case involving visiting forces personnel. Essentially this will only apply where a member of their visiting force is alleged to have committed an offence against the person (see definition of offence against person set out in the Schedule to the Visiting Forces Act 1952) where the victim has a relevant association with the visiting force.
Relevant association is defined in section 12(2) Visiting Forces Act 1952.
In addition the United Kingdom court does not have primary jurisdiction where the offence arose out of and in the course of the service person's duties as a member of the visiting force - see section 3(1) Visiting Forces Act 1952.
The appropriate authority of the visiting force in respect of such offences is able to issue a certificate as to the service person having been on duty at the time of the alleged offence and that the offence arose out of and in the course of that duty. The certificate constitutes sufficient evidence of that fact unless the contrary is proved - see section 11(4) Visiting Forces Act 1952.
The United Kingdom court will retain jurisdiction against members of visiting forces where an offence against the person (as defined by the Act) is committed against their spouse or child provided that spouse or child is a United Kingdom subject.
Usually, the service authorities for the visiting force member alleged to have committed an offence and the United Kingdom authorities will be able to agree which jurisdiction is appropriate to deal with the case.
If agreement is not reached the decision as to jurisdiction will be referred to the Crown Prosecution Service (CPS).
Where United Kingdom jurisdiction is appropriate the visiting forces case will normally be dealt with locally unless other criteria require the case to be dealt with by a CPS Casework Division - see Referral of Cases to CPS Headquarters (the Principal Legal Advisor, Private Office, Strategy and Policy Directorate and Press Office), Central Casework Divisions, the Chief Crown Prosecutors and Deputy Chief Crown Prosecutors, or Area Complex Casework Units.
File review and decision making (particularly as to waiver of jurisdiction) require sensitive and sympathetic consideration. File review and decision making in respect of visiting forces cases should be dealt with by the Chief Crown Prosecutor or Deputy Chief Crown Prosecutor or designated officer.
Waiver of Jurisdiction
The issue of a certificate of waiver proves waiver of jurisdiction by the appropriate authority in respect of the offence alleged to have been committed by the visiting force member.
Where a decision is made to waive jurisdiction on behalf of the United Kingdom authorities to a service court a certificate as specified under Section 3(3)(a) Visiting Forces Act 1952 signed by the Chief Crown Prosecutor or Deputy Chief Crown Prosecutor prevents the service person being tried in a United Kingdom court.
Otherwise if proceedings in a civilian court are justified the service authority will be invited to waive jurisdiction in which case a certificate of waiver will be issued by the service authority. For a specimen form of waiver see form VF1
By way of general guidance as to whether or not jurisdiction should be waived the following points should be borne in mind:
Experience shows that for an offender to be dealt with by a service court is rarely an easy option for the visiting force member; and
The United States Air Force maintains that its service personnel remain on duty whilst travelling between their base station and the home address of the force member. Such cases should be looked at carefully to see if this is sustainable. In appropriate cases where evidence to rebut this status is available (e.g. a long break in the journey/ significant diversion from most direct route) consideration should be given to challenging a Section 11 certificate issued by the service authority. Section 11(4) stipulates that a certificate issued by the appropriate authority of a country indicating that at the relevant time the person charged was a member of a visiting force, or a civilian component of the Force, and the offence arose out of and in the course of his duty, shall in any such proceedings be sufficient evidence of that fact unless the contrary is proved.
Waiver of jurisdiction by CPS
Examples of cases where jurisdiction is normally waived in favour of the service court include:
- Drug offences committed on the base;
- Minor drug offences committed off the base not involving any United Kingdom subject; and
- Cases where but for the involvement of service personnel a caution or diversion from prosecution would have been considered. In this case the appropriate service authority should be advised as to the likely disposal in the case of a United Kingdom subject.
Where waiver of jurisdiction is agreed the appropriate service authority should inform the CPS as to the results of the service court hearing.
Examples of cases where the United Kingdom would not usually waive jurisdiction in favour of the service court include:
- Damage has been caused to the person or property of a United Kingdom subject;
- There are a number of civilian witnesses;
- A child is a victim or an important witness; and
- There is a possibility of a special penalty being imposed by United Kingdom Law (e.g. disqualification from driving).
Waiver of Jurisdiction by Service Authority
Occasionally the service authority will be asked to waive jurisdiction in favour of the United Kingdom court. Examples of such cases include:
- Where British subjects and service personnel are jointly involved in the commission of an offence;
- Where a serious offence against the person or property of a British subject has been committed; and
- Where the offence involves mandatory disqualification.
The decision as to whether to waive or retain jurisdiction is an ongoing responsibility. Where information comes to the attention of the CPS after proceedings have been commenced in the United Kingdom courts which affects the decision to retain jurisdiction (e.g. where the visiting forces member is due to imminently depart the United Kingdom for duty elsewhere) a further review should be conducted.
In appropriate cases where review decides that the case merits a change of venue from the United Kingdom court to the service court the United Kingdom proceedings should be discontinued and a certificate of waiver issued to allow the service court to assume jurisdiction.