Criminal Justice and Courts Bill (HC Bill 192)

Engaging in other prohibited conduct

4 (1) It is an offence for a lay member of the Court Martial for
proceedings intentionally to engage in prohibited conduct during
the trial period, subject to the exceptions in sub-paragraphs (4)
5and (5).

(2) “Prohibited conduct” means conduct from which it may
reasonably be concluded that the person intends to make a finding
on a charge or a decision about a sentence otherwise than on the
basis of the evidence presented in the proceedings.

(3) 10An offence under this paragraph is committed whether or not the
person knows that the conduct is prohibited conduct.

(4) It is not an offence under this paragraph for a person to research
the case that is the subject of the proceedings (as defined in
paragraph 2(2) to (4)).

(5) 15It is not an offence under this paragraph for a person to disclose
information to another lay member of the Court Martial.

(6) A person guilty of an offence under this paragraph is liable to any
punishment mentioned in the Table in section 164, but a sentence
of imprisonment imposed in respect of the offence must not
20exceed two years.

Disclosing information about members’ deliberations etc

5 (1) It is an offence for a person intentionally—

(a) to disclose information about statements made, opinions
expressed, arguments advanced or votes cast by members
25of the Court Martial for proceedings in the course of their
deliberations, or

(b) to solicit or obtain such information,

subject to the exceptions in paragraphs 6 to 8.

(2) Where a person guilty of an offence under this paragraph—

(a) 30was a member of the Court Martial for the proceedings, or

(b) at the time the offence was committed, was a person
subject to service law or a civilian subject to service
discipline,

the person is liable to any punishment mentioned in the Table in
35section 164, but any sentence of imprisonment imposed in respect
of the offence must not exceed two years.

(3) Where any other person is guilty of an offence under this
paragraph—

(a) the person is liable, on conviction on indictment, to
40imprisonment for a term not exceeding two years or a fine
(or both), and

(b) proceedings for the offence may not be instituted except by
or with the consent of the Attorney General.

(4) The Crown Court has jurisdiction to try an offence under this
45paragraph committed in England and Wales other than by a

person described in sub-paragraph (2), including an offence
committed in respect of deliberations of members of the Court
Martial sitting outside England and Wales.

Disclosing information about members’ deliberations etc: initial exceptions

6 (1) 5It is not an offence under paragraph 5 for a person to disclose
information in the proceedings mentioned in paragraph 5(1)—

(a) for the purposes of enabling the Court Martial to make a
finding on a charge or pass a sentence, or

(b) in connection with the delivery of the findings or sentence.

(2) 10It is not an offence under paragraph 5 for the judge advocate for
those proceedings to disclose information—

(a) for the purposes of dealing with the proceedings, or

(b) for the purposes of an investigation by a relevant
investigator into whether an offence or contempt of court
15has been committed by or in relation to a lay member in the
proceedings mentioned in paragraph 5(1).

(3) It is not an offence under paragraph 5 for a person who reasonably
believes that a disclosure described in sub-paragraph (2)(b) has
been made to disclose information for the purposes of the
20investigation.

(4) It is not an offence under paragraph 5 to publish information
disclosed as described in sub-paragraph (1) or (2)(a) in the
proceedings mentioned in paragraph 5(1).

(5) In this paragraph—

• 25“publish” means make available to the public or a section of
  the public;

• “relevant investigator” means—

  (a)

  a police force listed in section 375;

  (b)

  the Attorney General;

  (c)

  30any other person or class of person specified by the
  Lord Chancellor for the purposes of this paragraph by
  regulations.

(6) The Lord Chancellor must obtain the consent of the Lord Chief
Justice of England and Wales before making regulations under
35this paragraph.

Disclosing information about members’ deliberations etc: further exceptions

7 (1) It is not an offence under paragraph 5 for a person to disclose
information to a person listed in sub-paragraph (2) if—

(a) the disclosure is made after the proceedings mentioned in
40paragraph 5(1) terminate, and

(b) the person making the disclosure reasonably believes
that—

(i) an offence or contempt of court has been, or may
have been, committed by or in relation to a lay
45member in connection with those proceedings, or

(ii) conduct of a lay member in connection with those
proceedings may provide grounds for an appeal
against conviction or sentence.

(2) Those persons are—

(a) 5a member of a police force listed in section 375;

(b) a judge of the Court of Appeal;

(c) a judge of the Court Martial Appeal Court;

(d) the registrar of criminal appeals;

(e) the judge advocate who dealt with the proceedings
10mentioned in paragraph 5(1);

(f) the court administration officer for the Court Martial;

(g) a member of the Military Court Service who would
reasonably be expected to disclose the information only to
a person mentioned in paragraphs (b) to (f).

(3) 15It is not an offence under paragraph 5 for a member of a police
force listed in section 375 to disclose information for the purposes
of obtaining assistance in deciding whether to submit the
information to—

(a) a judge of the Court of Appeal,

(b) 20a judge of the Court Martial Appeal Court, or

(c) the registrar of criminal appeals

provided that the disclosure does not involve publishing the
information.

(4) It is not an offence under paragraph 5 for a judge of the Court of
25Appeal, a judge of the Court Martial Appeal Court or the registrar
of criminal appeals to disclose information for the purposes of an
investigation by a relevant investigator into—

(a) whether an offence or contempt of court has been
committed by or in relation to a lay member in connection
30with the proceedings mentioned in paragraph 5(1), or

(b) whether conduct of a lay member in connection with those
proceedings may provide grounds for an appeal against
conviction or sentence.

(5) It is not an offence under paragraph 5 for a judge of the Court of
35Appeal, a judge of the Court Martial Appeal Court or the registrar
of criminal appeals to disclose information for the purposes of
enabling or assisting—

(a) a person who was the defendant in the proceedings
mentioned in paragraph 5(1), or

(b) 40a legal representative of such a person,

to consider whether conduct of a lay member in connection with
those proceedings may provide grounds for an appeal against
conviction or sentence.

(6) It is not an offence under paragraph 5 for a person who reasonably
45believes that a disclosure described in sub-paragraph (4) or (5) has
been made to disclose information for the purposes of the
investigation or consideration in question.

(7) It is not an offence under paragraph 5 for a person to disclose
information in evidence in—

(a) proceedings for an offence or contempt of court alleged to
have been committed by or in relation to a lay member in
5connection with the proceedings mentioned in paragraph
5(1),

(b) proceedings on an appeal, or an application for leave to
appeal, against a decision in the proceedings mentioned in
paragraph 5(1) where an allegation relating to conduct of
10or in relation to a lay member forms part of the grounds of
appeal, or

(c) proceedings on any further appeal or reference arising out
of proceedings mentioned in paragraph (a) or (b).

(8) It is not an offence under paragraph 5 for a person to disclose
15information in the course of taking reasonable steps to prepare for
proceedings described in sub-paragraph (7)(a) to (c).

(9) It is not an offence under paragraph 5 to publish information
disclosed as described in sub-paragraph (7).

(10) In this paragraph—

• 20“publish” means make available to the public or a section of
  the public;

• “relevant investigator” means—

  (a)

  a police force listed in section 375;

  (b)

  the Attorney General;

  (c)

  25the Criminal Cases Review Commission;

  (d)

  the Crown Prosecution Service;

  (e)

  the Service Prosecuting Authority;

  (f)

  any other person or class of person specified by the
  Lord Chancellor for the purposes of this paragraph by
  30regulations.

(11) The Lord Chancellor must obtain the consent of the Lord Chief
Justice of England and Wales before making regulations under
this paragraph.

Disclosing information about members’ deliberations: exceptions for soliciting
35disclosures or obtaining information

8 (1) It is not an offence under paragraph 5 to solicit a disclosure
described in paragraph 6(1) to (4) or paragraph 7(1) to (9).

(2) It is not an offence under paragraph 5 to obtain information—

(a) by means of a disclosure described in paragraph 6(1) to (4)
40or paragraph 7(1) to (9), or

(b) from a document that is available to the public or a section
of the public.

Saving for contempt of court

9 Nothing in paragraph 2, 3 or 4 affects what constitutes contempt
45of court at common law or what may be certified under section
311.”

Part 2 Further amendments

4 The Armed Forces Act 2006 is amended as follows.

5 In section 50(2) (jurisdiction of the Court Martial: service offences), after
5paragraph (f) insert—

“(fa) an offence under paragraph 2, 3 or 4 of Schedule 2A (offences
committed by a lay member of the Court Martial);

(fb) an offence under paragraph 5 of that Schedule (disclosing
information about members’ deliberations etc) committed by
10a person described in sub-paragraph (2) of that paragraph;”.

6 In section 51(3) (jurisdiction of the Service Civilian Court: excluded
offences), after paragraph (c) insert—

“(ca) an offence under paragraph 2, 3, 4 or 5 of Schedule 2A
(offences relating to members of the Court Martial);”.

7 15In section 373 (orders, regulations and rules), after subsection (1) insert—

“(1A) The powers conferred by paragraphs 6 and 7 of Schedule 2A on the
Lord Chancellor to make regulations are exercisable by statutory
instrument.”

8 In Schedule 2 (offences required to be referred to service police force or
20Director of Service Prosecutions under sections 113 and 116), at the end
insert—

“14 An offence under paragraph 4 of Schedule 2A (lay member of the
Court Martial engaging in prohibited conduct).

15 An offence under paragraph 5 of Schedule 2A (disclosing
25information about the deliberations of members of the Court
Martial) committed by a person described in sub-paragraph (2) of
that paragraph.”

9 The reference in section 286(4) of the Armed Forces Act 2006 (hearing by the
Court Martial of appeals from Service Civilian Court) to Part 7 of that Act
30includes the provisions inserted in that Part by this Schedule.