The Visiting Forces Act 1952 ("the Act") together with the Visiting Forces and International Headquarters (Application of Law) Order 1999 (“the Order”) make provision for dealing with offences committed by members of visiting forces (as defined by section 2(2)) from listed countries by their own service authorities (naval, military and air authorities) and service courts rather than by UK authorities. Although section 3 of the Act places restrictions on offences which may be prosecuted by UK authorities, the Act nonetheless retains jurisdiction to prosecute visiting forces by UK authorities. As a result the potential exists for conflict regarding which jurisdiction should deal with offences committed in the UK by members of a visiting force.
Section 1 of the Act and Schedule 1 of the Order lists the countries to which the legislation applies. In general if the service court does not have jurisdiction then the UK court will deal with the case. Section 3 sets out when the service court will have the primary right to exercise jurisdiction to deal with a case involving members of visiting forces. Essentially this will only apply where a member of the visiting force is alleged to have committed an offence against the person (as defined in the Schedule to the Act) where the victim has a “relevant association” (see section 12(2)) with the visiting force.
The UK 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)). Under section 11 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. This certificate constitutes sufficient evidence of that fact unless the contrary is proved.
The UK court retains jurisdiction against members of visiting forces where an offence against the person is committed against a dependant UK citizen.
Usually, the service authorities for the visiting force member alleged to have committed an offence and the UK authorities will be able to agree which jurisdiction is appropriate. If agreement is not reached the decision as to jurisdiction will be referred to the CPS. Where jurisdiction in England & Wales is appropriate the v case will be dealt with locally, subject to the criteria provided in the Referral of Cases to CPS Headquarters legal guidance.
UK jurisdiction may be waived in favour of the service court for a number of reasons, including:
- Drug offences committed on the base;
- Minor drug offences committed off the base not involving any UK citizen;
- 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 UK citizen.
Where waiver of jurisdiction is agreed the appropriate service authority should provide the results of the service court hearing.
There will also be circumstances where it would not be appropriate to waive jurisdiction in favour of the service court, this includes where:
- Damage has been caused to the person or property of a UK citizen;
- There are a number of civilian witnesses;
- A child is a victim/an important witness;
- There is a possibility of a ‘special’ penalty being imposed by domestic law (e.g. disqualification from driving).
The service authority may be asked to waive jurisdiction in favour of the UK, for example where:
- UK citizens and service personnel are jointly involved in the commission of an offence;
- A serious offence against the person or property of a UK citizen has been committed;
- The offence involves mandatory disqualification.
The decision as to whether to waive or retain jurisdiction is an ongoing responsibility. If, after proceedings have been commenced information comes to light, which affects the decision to retain jurisdiction (e.g. where the visiting forces member is due to imminently depart the UK for duty elsewhere) a further review should be conducted. Where it is decided to change jurisdiction to the service court, the UK proceedings should be discontinued and a certificate of waiver issued to allow the service court to assume jurisdiction.