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New Schedule
1. The Army Act 1955 shall be amended as follows.
2. For section 76 there shall be substituted the following sections--
"Investigation of charges by commanding officer
76.--(1) An allegation that a person subject to military law ("the accused") has committed an offence against any provision of this Part of this Act shall be reported, in the form of a charge, to his commanding officer.
(2) A commanding officer shall investigate a charge reported to him under subsection (1) above.
(3) If, in the course of investigating a charge, the commanding officer considers it appropriate to do so, he may amend the charge or substitute another charge for it and treat the amended or substituted charge as if that charge had been reported to him under subsection (1) above.
(4) If, in the course of investigating a charge, it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice should be, taken against the accused otherwise than under this Act he may stay further proceedings with respect to the charge.
(5) After investigating a charge the commanding officer may, subject to subsection (6) below--
(a) dismiss the charge;
(b) refer the charge to higher authority; or
(c) deal summarily with the charge.
(6) The commanding officer may not deal summarily with a charge if--
(a) the accused is an officer or warrant officer; or
(7) This section has effect subject to any power of the commanding officer under section 103A(1) below to direct that the charge be tried by a field general court-martial.
Powers of higher authority
76A.--(1) Where a charge is referred to higher authority, the higher authority shall refer the case to the prosecuting authority unless he takes one of the steps mentioned in this section in relation to the charge.
(2) The higher authority may refer the charge back to the commanding officer of the accused with a direction to dismiss it or to stay all further proceedings in relation to it, and the commanding officer shall deal with the charge accordingly.
(3) If the charge is against a non-commissioned officer or soldier and is capable of being dealt with summarily, the higher authority may refer it back to the commanding officer of the accused to be so dealt with.
(4) If the charge is against an officer below the rank of lieutenant-colonel or a warrant officer and is capable of being dealt with summarily, the higher authority may refer it to the appropriate superior authority to be so dealt with.
(5) If the charge has been referred to the higher authority as a result of an election for court-martial trial, and that election has not been withdrawn with leave, he may not refer the charge back to the commanding officer of the accused, or (as the case may be) to the appropriate superior authority, to be dealt with summarily.
(6) This section has effect subject to any power of the higher authority under section 103A(1) below to direct that the charge be tried by a field general court-martial.
Summary dealings
76B.--(1) This section applies where a charge is to be dealt with summarily by a commanding officer or appropriate superior authority.
(2) References in this Act to dealing summarily with a charge are references to the taking of the following action, namely, determining whether the charge is proved and, accordingly, either dismissing the charge or recording a finding that the charge has been proved and awarding punishment.
(3) If, before determining whether the charge is proved, he considers it appropriate to do so, the commanding officer or appropriate superior authority may amend the charge or substitute another charge for it and treat the amended or substituted charge as the charge to be dealt with summarily by him.
(4) If, before determining whether the charge is proved, he considers that it should not be dealt with summarily, the commanding officer or appropriate superior authority may refer the charge to higher authority.
(5) If he determines that the charge has been proved, the commanding officer or appropriate superior authority shall, before recording a finding that the charge has been proved, afford the accused an opportunity of electing court-martial trial.
(6) If the accused so elects, the commanding officer or appropriate superior authority shall refer the charge to higher authority with a view to the trial of the accused by court-martial.
(7) If the accused does not so elect, or so elects but subsequently withdraws his election with leave, the commanding officer or appropriate superior authority shall record a finding that the charge has been proved and award punishment accordingly.
(8) If a charge has been referred to higher authority as a result of an election for court-martial trial, and that election is withdrawn with leave, the higher authority shall--
(a) if the accused is an officer or warrant officer, refer the charge back to the appropriate superior authority;
9 May 1996 : Column 404 (b) if the accused is a non-commissioned officer or soldier, refer the charge back to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to record a finding that the charge has been proved and award punishment accordingly.
(9) This section has effect subject to any power of the commanding officer or appropriate superior authority under section 103A(1) below to direct that the charge be tried by a field general court-martial.
(10) Nothing in this section or section 76A above shall be taken to prevent an officer from acting as both higher authority and appropriate superior authority in relation to a charge.
Punishments available on summary dealings
76C.--(1) This section applies where a commanding officer or appropriate superior authority records a finding that a charge against an accused has been proved.
(2) The commanding officer may award one or more of the following punishments--
(a) if the offender is a soldier, detention for a period not exceeding 60 days;
(b) fine;
(c) if the offender is a non-commissioned officer, severe reprimand or reprimand;
(d) where the offence has occasioned any expense, loss or damage, stoppages;
(e) any minor punishment for the time being authorised by the Defence Council.
(3) The appropriate superior authority may award one or more of the following punishments--
(a) except in the case of a warrant officer, forfeiture of seniority for a specified term or otherwise;
(b) fine;
(c) severe reprimand or reprimand;
(d) where the offence has occasioned any expense, loss or damage, stoppages.
(4) The commanding officer may not award a fine or minor punishment for an offence for which he awards detention.
(5) The appropriate superior authority may not award a fine for an offence for which he awards forfeiture of seniority.
(6) Except in the case of an offence against section 70 of this Act, the amount of a fine shall not exceed the amount of the offender's pay for twenty-eight days.
(7) In the case of an offence against section 70 of this Act where the corresponding civil offence is a summary offence, the amount of a fine shall not exceed--
(a) the amount of the offender's pay for twenty-eight days; or
(b) (if less) the maximum amount of the fine which could be imposed by a civil court on summary conviction.
(8) In the case of an offence against section 70 of this Act where the corresponding civil offence is an indictable offence, the amount of a fine shall not exceed--
(a) the amount of the offender's pay for twenty-eight days; or
(b) (if less) the maximum amount of the fine which could be imposed by a civil court on conviction on indictment.
(9) A day's pay shall be taken, for the purposes of subsections (6) to (8) above, to be the gross pay that is, or would (apart from any forfeiture) be, issuable to the offender in respect of the day on which punishment is awarded in respect of the offence.
(10) If the offender is a lance-corporal or lance-bombardier, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the offender to be reduced to the ranks.
9 May 1996 : Column 405
(11) If the offender is an acting warrant officer or non-commissioned officer, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the offender--
(a) to revert to his permanent rank;
(b) to assume an acting rank lower than that held by him but higher than his permanent rank; or
(c) where his permanent rank is that of lance-corporal or lance-bombardier, to forfeit his acting rank and be reduced to the ranks."
3. Sections 77 to 80 shall cease to have effect.
4.--(1) Section 82 (officers who are to act as commanding officers and appropriate superior authorities) shall be amended as follows.
(2) For subsection (2) there shall be substituted the following subsection--
"(2) A person may act as appropriate superior authority in relation to a person charged with an offence if--
(a) he is a general officer, flag officer, air officer or brigadier, or
(b) where the Defence Council so direct, he is a colonel or a naval or air force officer of corresponding rank."
(3) Subsection (3) shall cease to have effect.
5. For section 83 there shall be substituted the following section--
"Regulations as to summary dealings etc
83.--(1) The Defence Council may make regulations with respect to the investigation of charges by commanding officers and summary dealings by commanding officers and appropriate superior authorities.
(2) Regulations under this section may in particular make provision with respect to--
(a) the reporting of a charge to a commanding officer;
(b) the procedure to be followed by a commanding officer investigating a charge;
(c) the delegation by the commanding officer of any of his functions;
(d) the charges which are capable of being dealt with summarily;
(e) the amendment or substitution of charges;
(f) the procedure on summary dealings;
(g) limitations on the punishments which may be awarded on a summary dealing by a commanding officer or appropriate superior authority of a specified description;
(h) the information to be provided to a person afforded an opportunity of electing court-martial trial;
(i) the procedure for electing court-martial trial, including any period within which any such election may be made;
(j) the procedure for requesting leave to withdraw an election for court-martial trial and for withdrawing any such election;
(k) who may act as the higher authority and the appropriate superior authority in specified descriptions of cases;
(l) who is to act as the higher authority and the appropriate superior authority in any particular case.
(3) A regulation under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void."
6. The Air Force Act 1955 shall be amended as follows.
7. For section 76 there shall be substituted the following sections--
"Investigation of charges by commanding officer
76.--(1) An allegation that a person subject to air-force law ("the accused") has committed an offence against any provision of this Part of this Act shall be reported, in the form of a charge, to his commanding officer.
(2) A commanding officer shall investigate a charge reported to him under subsection (1) above.
(3) If, in the course of investigating a charge, the commanding officer considers it appropriate to do so, he may amend the charge or substitute another charge for it and treat the amended or substituted charge as if that charge had been reported to him under subsection (1) above.
(4) If, in the course of investigating a charge, it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice should be, taken against the accused otherwise than under this Act he may stay further proceedings with respect to the charge.
(5) After investigating a charge the commanding officer may, subject to subsection (6) below--
(a) dismiss the charge;
(b) refer the charge to higher authority; or
(c) deal summarily with the charge.
(6) The commanding officer may not deal summarily with a charge if--
(a) the accused is an officer or warrant officer; or
(b) the charge is not capable of being dealt with summarily.
(7) This section has effect subject to any power of the commanding officer under section 103A(1) below to direct that the charge be tried by a field general court-martial.
Powers of higher authority
76A.--(1) Where a charge is referred to higher authority, the higher authority shall refer the case to the prosecuting authority unless he takes one of the steps mentioned in this section in relation to the charge.
(2) The higher authority may refer the charge back to the commanding officer of the accused with a direction to dismiss it or to stay all further proceedings in relation to it, and the commanding officer shall deal with the charge accordingly.
(3) If the charge is against a non-commissioned officer or airman and is capable of being dealt with summarily, the higher authority may refer it back to the commanding officer of the accused to be so dealt with.
(4) If the charge is against an officer below the rank of wing commander or a warrant officer and is capable of being dealt with summarily, the higher authority may refer it to the appropriate superior authority to be so dealt with.
(5) If the charge has been referred to the higher authority as a result of an election for court-martial trial, and that election has not been withdrawn with leave, he may not refer the charge back to the commanding officer of the accused, or (as the case may be) to the appropriate superior authority, to be dealt with summarily.
(6) This section has effect subject to any power of the higher authority under section 103A(1) below to direct that the charge be tried by a field general court-martial.
Summary dealings
76B.--(1) This section applies where a charge is to be dealt with summarily by a commanding officer or appropriate superior authority.
(2) References in this Act to dealing summarily with a charge are references to the taking of the following action, namely, determining whether the charge is proved and, accordingly, either dismissing the charge or recording a finding that the charge has been proved and awarding punishment.
(3) If, before determining whether the charge is proved, he considers it appropriate to do so, the commanding officer or appropriate superior authority may amend the charge or
9 May 1996 : Column 407 substitute another charge for it and treat the amended or substituted charge as the charge to be dealt with summarily by him.
(4) If, before determining whether the charge is proved, he considers that it should not be dealt with summarily, the commanding officer or appropriate superior authority may refer the charge to higher authority.
(5) If he determines that the charge has been proved, the commanding officer or appropriate superior authority shall, before recording a finding that the charge has been proved, afford the accused an opportunity of electing court-martial trial.
(6) If the accused so elects, the commanding officer or appropriate superior authority shall refer the charge to higher authority with a view to the trial of the accused by court-martial.
(7) If the accused does not so elect, or so elects but subsequently withdraws his election with leave, the commanding officer or appropriate superior authority shall record a finding that the charge has been proved and award punishment accordingly.
(8) If a charge has been referred to higher authority as a result of an election for court-martial trial, and that election is withdrawn with leave, the higher authority shall--
(a) if the accused is an officer or warrant officer, refer the charge back to the appropriate superior authority;
(b) if the accused is a non-commissioned officer or airman, refer the charge back to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to record a finding that the charge has been proved and award punishment accordingly.
(9) This section has effect subject to any power of the commanding officer or appropriate superior authority under section 103A(1) below to direct that the charge be tried by a field general court-martial.
(10) Nothing in this section or section 76A above shall be taken to prevent an officer from acting as both higher authority and appropriate superior authority in relation to a charge.
Punishments available on summary dealings
76C.--(1) This section applies where a commanding officer or appropriate superior authority records a finding that a charge against an accused has been proved.
(2) The commanding officer may award one or more of the following punishments--
(a) if the offender is an airman, detention for a period not exceeding 60 days;
(b) fine;
(c) if the offender is a non-commissioned officer, severe reprimand or reprimand;
(d) where the offence has occasioned any expense, loss or damage, stoppages;
(e) any minor punishment for the time being authorised by the Defence Council.
(3) The appropriate superior authority may award one or more of the following punishments--
(a) except in the case of a warrant officer, forfeiture of seniority for a specified term or otherwise;
(b) fine;
(c) severe reprimand or reprimand;
(d) where the offence has occasioned any expense, loss or damage, stoppages.
(4) The commanding officer may not award a fine or minor punishment for an offence for which he awards detention.
(5) The appropriate superior authority may not award a fine for an offence for which he awards forfeiture of seniority.
9 May 1996 : Column 408
(6) Except in the case of an offence against section 70 of this Act, the amount of a fine shall not exceed the amount of the offender's pay for twenty-eight days.
(7) In the case of an offence against section 70 of this Act where the corresponding civil offence is a summary offence, the amount of a fine shall not exceed--
(a) the amount of the offender's pay for twenty-eight days; or
(b) (if less) the maximum amount of the fine which could be imposed by a civil court on summary conviction.
(8) In the case of an offence against section 70 of this Act where the corresponding civil offence is an indictable offence, the amount of a fine shall not exceed--
(a) the amount of the offender's pay for twenty-eight days; or
(b) (if less) the maximum amount of the fine which could be imposed by a civil court on conviction on indictment.
(9) A day's pay shall be taken, for the purposes of subsections (6) to (8) above, to be the gross pay that is, or would (apart from any forfeiture) be, issuable to the offender in respect of the day on which punishment is awarded in respect of the offence.
(10) If the offender is an acting warrant officer or non-commissioned officer, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the offender--
(a) to revert to his permanent rank; or
(b) to assume an acting rank lower than that held by him but higher than his permanent rank."
8. Sections 77 to 80 shall cease to have effect.
9.--(1) Section 82 (officers who are to act as commanding officers and appropriate superior authorities) shall be amended as follows.
(2) For subsection (2) there shall be substituted the following subsection--
"(2) A person may act as appropriate superior authority in relation to a person charged with an offence if--
(a) he is an air officer, flag officer, general officer or brigadier, or
(b) where the Defence Council so direct, he is a group captain or a naval or military officer of corresponding rank."
(3) Subsection (3) shall cease to have effect.
10. For section 83 there shall be substituted the following section--
"Regulations as to summary dealings etc
83.--(1) The Defence Council may make regulations with respect to the investigation of charges by commanding officers and summary dealings by commanding officers and appropriate superior authorities.
(2) Regulations under this section may in particular make provision with respect to--
(a) the reporting of a charge to a commanding officer;
(b) the procedure to be followed by a commanding officer investigating a charge;
(c) the delegation by the commanding officer of any of his functions;
(d) the charges which are capable of being dealt with summarily;
(e) the amendment or substitution of charges;
(f) the procedure on summary dealings;
(g) limitations on the punishments which may be awarded on a summary dealing by a commanding officer or appropriate superior authority of a specified description;
(h) the information to be provided to a person afforded an opportunity of electing court-martial trial;
9 May 1996 : Column 409 (i) the procedure for electing court-martial trial, including any period within which any such election may be made;
(j) the procedure for requesting leave to withdraw an election for court-martial trial and for withdrawing any such election;
(k) who may act as the higher authority and the appropriate superior authority in specified descriptions of cases;
(l) who is to act as the higher authority and the appropriate superior authority in any particular case.
(3) A regulation under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void."
11. The Naval Discipline Act 1957 shall be amended as follows.
12. Sections 49, 50 and 52A shall cease to have effect.
13. After section 52A there shall be inserted the following sections--
Investigation of charges by commanding officer
52B.--(1) An allegation that a person subject to this Act ("the accused") has committed an offence against any provision of this Act shall be reported, in the form of a charge, to his commanding officer.
(2) A commanding officer shall investigate a charge reported to him under subsection (1) above.
(3) If, in the course of investigating a charge, the commanding officer considers it appropriate to do so, he may amend the charge or substitute another charge for it and treat the amended or substituted charge as if that charge had been reported to him under subsection (1) above.
(4) If, in the course of investigating a charge, it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice should be, taken against the accused otherwise than under this Act he may stay further proceedings with respect to the charge.
(5) After investigating a charge, the commanding officer may, subject to subsection (6) below--
(a) dismiss the charge;
(b) refer the charge to higher authority; or
(c) try the accused summarily.
(6) The commanding officer may not try summarily--
(a) any charge against an officer; or
(b) any charge which is not capable of being tried summarily.
(7) For the purposes of this Act, a charge is capable of being tried summarily if it is for an offence triable by court-martial under this Act, other than an offence punishable by sentence of death or an offence of murder.
Powers of higher authority
52C.--(1) Where a charge is referred to higher authority, the higher authority shall refer the case to the prosecuting authority unless he takes one of the steps mentioned in this section in relation to the charge.
(2) The higher authority may refer the charge back to the commanding officer of the accused with a direction to dismiss it or to stay all further proceedings in relation to it; and the commanding officer shall deal with the charge accordingly.
(3) If the charge is against a rating and is capable of being tried summarily, the higher authority may, subject to subsection (4) below, refer it back to the commanding officer of the accused to be so tried.
(4) If the charge has been referred to the higher authority as a result of an election for court-martial trial, and that election has not been withdrawn with leave, he may not refer the charge back to the commanding officer of the accused to be tried summarily.
(5) This section has effect subject to any power of the higher authority under section 52G(1) below to order a disciplinary court.
Summary trial
52D.--(1) This section applies where a charge is to be tried summarily.
(2) If the commanding officer considers that, if the charge were proved, he would award a punishment--
(a) in the case of a warrant officer, of disrating, a fine or stoppages;
(b) in the case of any other rating, of dismissal from Her Majesty's service, detention or disrating,
he shall afford the accused an opportunity of electing court-martial trial.
(3) If the accused so elects and does not withdraw his election with leave, the commanding officer shall refer the charge to higher authority with a view to the trial of the accused by court-martial.
(4) If a charge has been referred to higher authority as a result of an election for court-martial trial, and that election is withdrawn with leave, the higher authority shall refer the charge back to the commanding officer of the accused to be tried summarily.
(5) If, in the course of trying the charge, the commanding officer considers that it should not be tried summarily, he may refer the charge to higher authority.
(6) If the commanding officer determines that the charge has not been proved, he shall acquit the accused.
(7) If the commanding officer determines that the charge has been proved, he shall record a finding of guilt and award punishment accordingly.
(8) A commanding officer shall not have power on a summary trial to award a sentence of dismissal with disgrace from Her Majesty's service, a sentence of imprisonment or a sentence of detention for any term exceeding three months.
Commanding officers
52E.--(1) In this Act "the commanding officer", in relation to a person charged with an offence, means the officer in command of the ship or naval establishment to which he belongs at the time of the commission of the offence or at the time of its investigation or summary trial.
(2) The Defence Council may by regulations make provision--
(a) enabling the powers conferred by this Act on the commanding officer of an accused to be exercised by other persons of such descriptions as may be specified;
(b) with respect to the delegation by the commanding officer, or other person exercising the powers of a commanding officer by virtue of regulations under paragraph (a) above, of any of his powers to any officer not below the rank of lieutenant or corresponding rank.
(3) An officer to whom any powers are delegated by virtue of subsection (2)(b) above shall not have power to award any punishment other than a fine, stoppages or those described in section 43(1)(m) of this Act.
(4) The reference in subsection (3) above to stoppages does not include a reference to stoppages for personal injury.
Regulations as to summary trial etc
52F.--(1) The Defence Council may make regulations with respect to the investigation of charges by commanding officers and summary trial.
(2) Regulations under this section may in particular make provision with respect to--
(a) the reporting of a charge to a commanding officer;
9 May 1996 : Column 411
(b) the procedure to be followed by a commanding officer investigating a charge;
(c) the amendment or substitution of charges;
(d) the procedure on summary trial;
(e) limitations on the punishments which may be awarded on summary trial by a specified description of commanding officer;
(f) limitations on the punishments which may be so awarded to a specified description of accused;
(g) requirements for punishments to be approved before taking effect;
(h) the information to be provided to a person afforded an opportunity of electing court-martial trial;
(i) the procedure for electing court-martial trial, including any period within which any such election may be made;
(j) the procedure for requesting leave to withdraw an election for court-martial trial and for withdrawing any such election;
(k) who may act as the higher authority.
(3) A regulation under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.
Disciplinary courts
52G.--(1) If an officer of Her Majesty's naval forces below the rank of commander is charged with an offence to which this section applies at a time when the force to which he belongs is on active service, the higher authority to whom the charge was referred may order a disciplinary court.
(2) A disciplinary court shall have power, subject to the provisions of this section and of any rules made under it, to try and punish the offence accordingly.
(3) This section applies to any offence triable by court-martial under this Act other than an offence under the following provisions--
(a) sections 2 to 4, 6, 9, 10, 23 and 24, section 29(1) so far as relating to public or service property, section 29A, and sections 34 to 37 and 42;
(b) sections 40 and 41, so far as applicable to an offence under any of the provisions mentioned in paragraph (a) of this subsection.
(4) A disciplinary court shall consist of not less than three nor more than five officers, at least one of whom is not below the rank of commander.
(5) An officer shall not be a member of a disciplinary court unless he is an officer of Her Majesty's naval forces and is subject to this Act.
(6) The officer who orders a disciplinary court shall not be a member of the court.
(7) A disciplinary court shall not have power to award any punishment greater than dismissal from Her Majesty's service.
(8) The Secretary of State may by statutory instrument make rules as to the assembling, constitution, procedure and practice of disciplinary courts.
(9) Rules under subsection (8) above may apply in relation to disciplinary courts and to proceedings of such courts, with the necessary modifications, any provisions of this Part of this Act or of rules under section 58 of this Act relating to courts-martial and proceedings of courts-martial."
14. After section 83 of the Army Act 1955 there shall be inserted the following sections--
83A.--(1) Her Majesty may appoint a qualified officer belonging to Her military forces to be the prosecuting authority for the Army; and in this Act "the prosecuting authority" means the officer so appointed.
(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is--
(a) a person who has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland of at least ten years' standing; or
(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least ten years' standing.
Functions of the prosecuting authority
83B.--(1) This section applies where a case has been referred to the prosecuting authority.
(2) If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall--
(a) if the accused is an officer or warrant officer, refer the case to the appropriate superior authority;
(b) if the accused is a non-commissioned officer or soldier, refer the case to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to record a finding that the preliminary charge has been proved and award punishment accordingly.
(3) In subsection (2) above "the preliminary charge" means the charge for which punishment would have been awarded had the accused not elected court-martial trial.
(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall--
(a) determine any charge to be preferred and (subject to subsection (5) below) whether any such charge is to be tried by general court-martial or district court-martial; and
(b) prefer any charge so determined by him.
(5) The prosecuting authority shall not determine that a charge against an officer be tried by district court-martial.
(6) The prosecuting authority shall, in accordance with rules under section 103 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred and the description of court-martial by which that charge is to be tried; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.
(7) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
(8) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 103 of this Act--
(a) amend, or substitute another charge or charges for, any charge preferred;
(b) prefer an additional charge, or additional charges, against the accused;
(c) discontinue proceedings on any charge.
(9) The powers mentioned in subsection (8)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.
(10) The prosecuting authority may not exercise any power mentioned in subsection (8)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.
(11) If, before the commencement of the trial of a charge against the accused ("the original charge"), the prosecuting authority exercises the power mentioned in subsection (8)(b) above, he may, in accordance with rules under section 103 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (6) above shall apply with such exceptions and modifications as may be prescribed.
(12) The prosecuting authority may not exercise the power mentioned in subsection (8)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.
(13) If, before the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, he may direct that, for the purposes of section 134 of this Act, the accused is to be deemed to have been tried by court-martial for the offence charged.
(14) If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (13) above.
Prosecuting officers
83C.--(1) The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.
(2) An officer shall not be appointed as a prosecuting officer unless he is--
(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland."
15. After section 83 of the Air Force Act 1955 there shall be inserted the following sections--
83A.--(1) Her Majesty may appoint a qualified officer belonging to Her air forces to be the prosecuting authority for the Royal Air Force; and in this Act "the prosecuting authority" means the officer so appointed.
(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is--
(a) a person who has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland of at least ten years' standing; or
(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least ten years' standing.
Functions of the prosecuting authority
83B.--(1) This section applies where a case has been referred to the prosecuting authority.
(2) If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall--
(a) if the accused is an officer or warrant officer, refer the case to the appropriate superior authority;
(b) if the accused is a non-commissioned officer or airman, refer the case to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to record a finding that the preliminary charge has been proved and award punishment accordingly.
(3) In subsection (2) above "the preliminary charge" means the charge for which punishment would have been awarded had the accused not elected court-martial trial.
(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall--
(a) determine any charge to be preferred and (subject to subsection (5) below) whether any such charge is to be tried by general court-martial or district court-martial; and
(b) prefer any charge so determined by him.
(5) The prosecuting authority shall not determine that a charge against an officer be tried by district court-martial.
(6) The prosecuting authority shall, in accordance with rules under section 103 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred and the description of court-martial by which that charge is to be tried; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.
(7) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
(8) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 103 of this Act--
(a) amend, or substitute another charge or charges for, any charge preferred;
(b) prefer an additional charge, or additional charges, against the accused;
(c) discontinue proceedings on any charge.
(9) The powers mentioned in subsection (8)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.
(10) The prosecuting authority may not exercise any power mentioned in subsection (8)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.
(11) If, before the commencement of the trial of a charge against the accused ("the original charge"), the prosecuting authority exercises the power mentioned in subsection (8)(b) above, he may, in accordance with rules under section 103 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (6) above shall apply with such exceptions and modifications as may be prescribed.
(12) The prosecuting authority may not exercise the power mentioned in subsection (8)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.
(13) If, before the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, he may direct that, for the purposes of section 134 of this Act, the accused is to be deemed to have been tried by court-martial for the offence charged.
(14) If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (13) above.
Prosecuting officers
83C.--(1) The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.
(2) An officer shall not be appointed as a prosecuting officer unless he is--
(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
9 May 1996 : Column 415
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland."
16. After section 52G of the Naval Discipline Act 1957 there shall be inserted the following sections--
52H.--(1) Her Majesty may appoint a qualified officer of Her naval forces to be the prosecuting authority for the Royal Navy; and in this Act "the prosecuting authority" means the officer so appointed.
(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is--
(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;.
(b) an advocate or solicitor in Scotland of at least five years' standing; or
(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least five years' standing.
Functions of the prosecuting authority
52I.--(1) This section applies where a case has been referred to the prosecuting authority.
(2) If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall refer the case to the commanding officer of the accused for the preliminary charge to be tried summarily.
(3) In subsection (2) above "the preliminary charge" means the charge which would have been tried summarily had the accused not elected court-martial trial.
(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and prefer any such charge.
(5) The prosecuting authority shall, in accordance with rules under section 58 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.
(6) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
(7) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act--
(a) amend, or substitute another charge or charges for, any charge preferred;
(b) prefer an additional charge, or additional charges, against the accused;
(c) discontinue proceedings on any charge.
(8) The powers mentioned in subsection (7)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.
(9) The prosecuting authority may not exercise any power mentioned in subsection (7)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.
(10) If, before the commencement of the trial of a charge against the accused ("the original charge"), the prosecuting authority exercises the power mentioned in subsection (7)(b) above, he may, in accordance with rules under section 58 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (5) above shall apply with such exceptions and modifications as may be prescribed.
(11) The prosecuting authority may not exercise the power mentioned in subsection (7)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.
(12) If, before the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, he may direct that the accused shall not be liable to be tried summarily or by court-martial for the offence charged.
(13) If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (12) above.
Prosecuting officers
52J.--(1) The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.
(2) An officer shall not be appointed as a prosecuting officer unless he is--
(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland."
17. The Army Act 1955 shall be amended as follows.
18. Section 84 shall cease to have effect.
19. After section 84 there shall be inserted the following sections--
"Court administration officers."
84A. In this Act--
"court administration officer" means an officer (or other person) appointed by the Defence Council to convene general and district courts-martial and perform such other functions as may be prescribed; and
"the court administration officer", in relation to a court-martial, means the court administration officer who convened the court-martial and includes his successor or any person for the time being exercising his or his successor's functions.
Judge advocates
84B.--(1) In this Act "the judge advocate", in relation to a court-martial, means the judge advocate appointed by or on behalf of the Judge Advocate General to be a member of the court-martial.
(2) No person shall be appointed as the judge advocate unless he is--
(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate in Scotland of at least five years' standing or a solicitor who has had a right of audience in the Court of Session or the High Court of Justiciary for at least five years; or
(c) a member of the Bar of Northern Ireland of at least five years' standing.
(3) Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.
(4) Any directions given by the judge advocate shall be binding on the court.
Convening of general and district courts martial
84C.--(1) On being notified by the prosecuting authority of the charge preferred and the description of court-martial by which the charge is to be tried, a court administration officer shall by order convene a court-martial of that description.
(2) The order convening the court-martial shall specify--
(a) the date, time and place at which the court-martial is to sit;
(b) the officers who are to be members of the court-martial;
(c) which of those officers is to be president of the court-martial;
(d) any other officers appointed for the purpose of filling vacancies,
and shall state that a judge advocate appointed by or on behalf of the Judge Advocate General is to be a member of the court-martial.
(3) At any time before the commencement of the trial, the court administration officer may, in accordance with rules under section 103 of this Act, amend or withdraw the order convening the court-martial.
(4) The following shall not be eligible to be members of a court-martial for the trial of a charge--
(a) the court administration officer;
(b) an officer who at any time between the date on which the preliminary charge was reported to the commanding officer of the accused and the date of the trial has been the commanding officer of the accused;
(c) the higher authority to whom the preliminary charge against the accused was referred;
(d) any other officer who has investigated the subject matter of the charge against the accused;
(e) any other officer who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused.
(5) In subsection (4) above "the preliminary charge" means the charge referred to higher authority by the commanding officer of the accused.
Constitution of general and district courts-martial
84D.--(1) A general court-martial shall consist of the president, not less than four other military officers and the judge advocate.
(2) A district court-martial shall consist of the president, not less than two other military officers and the judge advocate.
(3) An officer shall not be appointed a member of a general court-martial unless he has held a commission in any of Her Majesty's naval, military or air forces for a period of not less than three years or for periods amounting in the aggregate to not less than three years.
(4) An officer shall not be appointed a member of a district court-martial unless he has held a commission in any of Her Majesty's naval, military or air forces for a period of not less than two years or for periods amounting in the aggregate to not less than two years.
(5) Not less than four of the members of a general court-martial shall be of a rank not below that of captain.
(6) A general court-martial for the trial of an officer above the rank of captain shall not include any member below the rank of captain.
(7) The president of a general or district court-martial shall not be below the rank of field officer unless in the opinion of the court administration officer a field officer having suitable qualifications is not, with due regard to the public service, available; and in any event the president of such a court-martial shall not be below the rank of captain.
(8) If, in the opinion of the court administration officer, the necessary number of military officers having suitable qualifications is not, with due regard to the public service,
9 May 1996 : Column 418 available, he may appoint as any member of the court (but not as its president) any naval or air-force officer of corresponding rank to that required for a military officer.
(9) In this section--
"air-force officer" means an officer belonging to Her Majesty's air forces and subject to air-force law;
"military officer" means an officer belonging to Her Majesty's military forces and subject to military law; and
"naval officer" means an officer belonging to Her Majesty's naval forces and subject to the Naval Discipline Act 1957."
20. Section 85(3) shall cease to have effect.
21. Sections 86 to 90 shall cease to have effect.
22.--(1) Section 91 (place for sitting of court-martial and adjournment to other places) shall be amended as follows.
(2) In subsection (1)--
(a) for the words "Her Majesty's dominions" there shall be substituted the words "the United Kingdom"; and
(b) the words from "and the convening officer" to the end shall cease to have effect.
(3) In subsection (2), for the words from "shall" to "direction" there shall be substituted the word "may".
23.--(1) Section 92 (challenges by accused to members of court-martial) shall be amended as follows.
(2) In subsection (1), for the word "officer" there shall be substituted the word "member".
(3) In subsection (2)--
(a) for the word "they" there shall be substituted the words "the officers appointed members"; and
(b) for the words "those officers" there shall be substituted the words "the members".
(4) In subsection (3)--
(a) for the word "officer" there shall be substituted the word "member"; and
(b) for the words from "considered" to the end there shall be substituted the words "determined by the judge advocate".
(5) In subsection (4)--
(a) for the words from "objection" to "it" there shall be substituted the words "an objection to the president is allowed"; and
(b) for the word "convening" there shall be substituted the words "court administration".
(6) In subsection (5)--
(a) for the words from "objection" to "it" there shall be substituted the words "an objection to any other officer appointed a member of the court is allowed";
(b) for the word "member" in the second place it appears there shall be substituted the word "officer"; and
(c) for the word "members" in the second place it appears there shall be substituted the word "officers".
(7) After subsection (5) there shall be added the following subsection--
"(6) If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Judge Advocate General."
24.--(1) Section 93 (administration of oaths) shall be amended as follows.
(2) In subsection (1)--
(a) after the word "every" there shall be inserted the words "officer appointed a"; and
(b) the words "other than an exempted person" and "judge advocate" shall cease to have effect.
(3) Subsection (1A) shall cease to have effect.
9 May 1996 : Column 419
25. In section 94 (courts-martial to sit in open court), after subsection (5) there shall be added the following subsections--
"(6) The judge advocate shall not be present while the other members of the court are deliberating on their finding on any charge.
(7) Any ruling or direction of the judge advocate on a question of law (including a question of procedure or practice) shall be given in open court.
(8) The judge advocate may determine, and give rulings on, questions of law (including questions of procedure and practice) in the absence of the other members of the court and of any officers and other persons under instruction."
26.--(1) Section 95 (dissolution of courts-martial) shall be amended as follows.
(2) In subsection (1)--
(a) for the words "whether before or after" there shall be substituted the word "before"; and
(b) for the word "convening" in both places it appears there shall be substituted the words "court administration".
(3) After subsection (1) there shall be inserted the following subsection--
"(1A) Where, after the commencement of the trial, it appears to the judge advocate necessary or expedient in the interests of the administration of justice that a court-martial should be dissolved, he may by order dissolve the court-martial."
(4) In subsection (3), for the words "convening officer" there shall be substituted the words "judge advocate".
(5) Subsection (4) shall cease to have effect.
27.--(1) Section 96 (decisions of courts-martial) shall be amended as follows.
(2) In subsection (1), for the words from "every" to "court-martial" there shall be substituted the words "the finding of a court-martial and any sentence awarded".
(3) After subsection (1) there shall be inserted the following subsection--
"(1A) The judge advocate shall not be entitled to vote on the finding."
(4) In subsection (3)--
(a) after the word "court" in the second place it appears there shall be inserted the words "entitled to vote on the finding"; and
(b) for the words "the members" in the second place they appear there shall be substituted the words "those members".
(5) In subsection (5), the words from "or on" to "finding" shall cease to have effect.
28. In section 97(3) (sentence of court-martial to be announced in open court) after the word "mercy" there shall be inserted the words "and any reasons for the sentence".
29.--(1) Section 99 (rules of evidence) shall be amended as follows.
(2) In subsection (1)--
(a) for the words "civil courts" there shall be substituted the words "trials on indictment"; and
(b) for the words "before a civil court" there shall be substituted the words "in a trial on indictment".
(3) In subsection (3), for the words "civil court" there shall be substituted the words "trial on indictment".
30. For section 103 there shall be substituted the following section--
"Rules
103.--(1) The Secretary of State may make rules with respect to--
(a) the investigation, prosecution and trial of, and awarding of punishment for, offences cognizable by courts-martial;
9 May 1996 : Column 420
(b) the review of findings and sentences of courts-martial.
(2) Rules under this section may in particular make provision with respect to--
(a) proceedings preliminary to trials by general or district courts-martial;
(b) the appointment of a judge advocate for any preliminary proceedings;
(c) the delegation by court administration officers of any of their functions;
(d) the convening and constitution of general and district courts-martial;
(e) the sittings, adjournment and dissolution of general and district courts-martial;
(f) the procedure to be followed in trials by general and district courts-martial;
(g) the representation of the accused at such trials and any preliminary proceedings;
(h) procuring the attendance of witnesses at such trials and any preliminary proceedings;
(i) enabling a general or district court-martial, in such cases and to such extent as may be prescribed, to amend a charge which is being tried by the court;
(j) enabling a general or district court-martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;
(k) directing that the powers conferred by section 7 of the Bankers' Books Evidence Act 1879 (which enables orders to be made for the inspection of bankers' books for the purposes of legal proceedings) may be exercised for the purposes of a general or district court-martial (whether within or without the United Kingdom) by the commanding officer of the accused or a judge advocate as well as by the court or a judge within the meaning of that Act;
(l) the forms of orders and other documents to be made for the purposes of any provision of this Act or of rules under this section;
(m) the cases in which, and extent to which, offences may be taken into consideration by a general or district court-martial and the powers of the court in relation to any offences taken into consideration;
(n) the recording of the proceedings of a general or district court-martial;
(o) the procedure to be followed on review of findings and sentences of general or district courts-martial.
(3) Rules made by virtue of paragraph (i) of subsection (2) above shall secure that the power to amend charges is not exercisable in circumstances substantially different from those in which indictments are amendable by a civil court in England, or otherwise than subject to the like conditions, as nearly as circumstances admit, as those subject to which indictments are so amendable.
(4) A rule under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.
(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
9 May 1996 : Column 421
31. After section 103 there shall be inserted the following sections--
103A.--(1) Where an officer to whom this subsection applies--
(a) is commanding a body of the regular forces on active service; and
(b) is of opinion that it is not possible without serious detriment to the public service for a charge against a member of that body to be tried by a general or district court-martial,
he may direct that the charge be tried by a field general court-martial.
(2) Subsection (1) above applies to--
(a) the commanding officer who has investigated the charge;
(b) the commanding officer or appropriate superior authority who has determined on a summary dealing that the charge against the accused has been proved, in a case where the accused has elected court-martial trial and that election has not been withdrawn;
(c) where the charge is against an officer or warrant officer, the higher authority to whom the charge has been referred by the commanding officer.
(3) If an officer to whom subsection (1) above applies directs that a charge be tried by a field general court-martial, he shall by order convene a field general court-martial.
(4) The order convening the field general court-martial shall specify--
(a) the date, time and place at which the court-martial is to sit;
(b) the officers who are to be members of the court-martial;
(c) which of those officers is to be president of the court-martial.
(5) At any time before the commencement of the trial, the officer who convened the field general court-martial may, in accordance with rules under section 103C of this Act, amend or withdraw the order convening the court-martial.
(6) Subject to subsection (7) below, the officer convening the field general court-martial shall not be a member of the court-martial.
(7) The officer convening the field general court-martial may be its president if, in his opinion, it is not possible, without serious detriment to the public service, to appoint another officer as president.
Constitution of field general courts martial
103B.--(1) Subject to subsections (2) and (3) below, a field general court-martial shall consist of the president and not less than two other military officers.
(2) If the officer who convened the field general court-martial is of opinion that three military officers having suitable qualifications are not available without serious detriment to the public service, the field general court-martial shall consist of the president and one other military officer.
(3) Unless the officer convening the field general court-martial is of opinion that a judge advocate is not available without serious detriment to the public service, a judge advocate shall be a member of the court-martial.
(4) In subsection (3) above, "a judge advocate" means a judge advocate appointed by or on behalf of the Judge Advocate General or, if the officer convening the field general court-martial is of opinion that no such judge advocate is available without serious detriment to the public service, a qualified officer appointed by that officer.
(5) An officer is "qualified" for the purposes of subsection (4) above if he is--
(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.
(6) The president of a field general court-martial shall not be below the rank of captain.
(7) If a field general court-martial is to be convened at any place where in the opinion of the officer convening it the necessary number of military officers having suitable qualifications is not available to form the court, and cannot be made available without serious detriment to the public service, the officer may appoint as any member of the court (but not as its president) any naval or air-force officer of corresponding rank to that required for a military officer.
(8) A field general court-martial shall have the powers of a general court-martial except that where less than three officers are members of the court the sentence shall not exceed imprisonment for a term of two years or detention under section 71AA of this Act for a period of two years.
(9) In this section--
"air force officer" means an officer belonging to Her Majesty's air forces and subject to air-force law;
"military officer" means an officer belonging to Her Majesty's military forces and subject to military law; and
"naval officer" means an officer belonging to Her Majesty's naval forces and subject to the Naval Discipline Act 1957.
Field General Court Martial Rules
103C.--(1) The Secretary of State may by statutory instrument make rules with respect to field general courts-martial.
(2) Rules under this section may in particular--
(a) provide for any provision of this Act relating to general or district courts-martial or the proceedings of such courts-martial to apply to field general courts-martial or the proceedings of such courts-martial with the necessary modifications;
(b) make any provision with respect to field general courts-martial which may be made with respect to general and district courts-martial by rules under section 103 of this Act."
32. Sections 104 to 106 shall cease to have effect.
33. The Air Force Act 1955 shall be amended as follows.
34. Section 84 shall cease to have effect.
35. After section 84 there shall be inserted the following sections--
"Court administration officers
84A. In this Act--
"court administration officer" means an officer (or other person) appointed by the Defence Council to convene general and district courts-martial and perform such other functions as may be prescribed; and
"the court administration officer", in relation to a court-martial, means the court administration officer who convened the court-martial and includes his successor or any person for the time being exercising his or his successor's functions.
Judge advocates
84B.--(1) In this Act "the judge advocate", in relation to a court-martial, means the judge advocate appointed by or on behalf of the Judge Advocate General to be a member of the court-martial.
(2) No person shall be appointed as the judge advocate unless he is--
(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate in Scotland of at least five years' standing or a solicitor who has had a right of audience in the Court of Session or the High Court of Justiciary for at least five years; or
(c) a member of the Bar of Northern Ireland of at least five years' standing.
(3) Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.
(4) Any directions given by the judge advocate shall be binding on the court.
Convening of general and district courts martial
84C.--(1) On being notified by the prosecuting authority of the charge preferred and the description of court-martial by which the charge is to be tried, a court administration officer shall by order convene a court-martial of that description.
(2) The order convening the court-martial shall specify--
(a) the date, time and place at which the court-martial is to sit;
(b) the officers who are to be members of the court-martial;
(c) which of those officers is to be president of the court-martial;
(d) any other officers appointed for the purpose of filling vacancies,
and shall state that a judge advocate appointed by or on behalf of the Judge Advocate General is to be a member of the court-martial.
(3) At any time before the commencement of the trial, the court administration officer may, in accordance with rules under section 103 of this Act, amend or withdraw the order convening the court-martial.
(4) The following shall not be eligible to be members of a court-martial for the trial of a charge--
(a) the court administration officer;
(b) an officer who at any time between the date on which the preliminary charge was reported to the commanding officer of the accused and the date of the trial has been the commanding officer of the accused;
(c) the higher authority to whom the preliminary charge against the accused was referred;
(d) any other officer who has investigated the subject matter of the charge against the accused;
(e) any other officer who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused.
(5) In subsection (4) above "the preliminary charge" means the charge referred to higher authority by the commanding officer of the accused.
Constitution of general and district courts martial
84D.--(1) A general court-martial shall consist of the president, not less than four other air-force officers and the judge advocate.
(2) A district court-martial shall consist of the president, not less than two other air-force officers and the judge advocate.
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(3) An officer shall not be appointed a member of a general court-martial unless he has held a commission in any of Her Majesty's naval, military or air forces for a period of not less than three years or for periods amounting in the aggregate to not less than three years.
(4) An officer shall not be appointed a member of a district court-martial unless he has held a commission in any of Her Majesty's naval, military or air forces for a period of not less than two years or for periods amounting in the aggregate to not less than two years.
(5) Not less than four of the members of a general court-martial shall be of a rank not below that of flight lieutenant.
(6) A general court-martial for the trial of an officer above the rank of flight lieutenant shall not include any member below the rank of flight lieutenant.
(7) The president of a general or district court-martial shall not be below the rank of squadron leader unless in the opinion of the court administration officer a squadron leader having suitable qualifications is not, with due regard to the public service, available; and in any event the president of such a court-martial shall not be below the rank of flight lieutenant.
(8) If, in the opinion of the court administration officer, the necessary number of air-force officers having suitable qualifications is not, with due regard to the public service, available, he may appoint as any member of the court (but not as its president) any naval or military officer of corresponding rank to that required for an air-force officer.
(9) In this section--
"air-force officer" means an officer belonging to Her Majesty's air forces and subject to air-force law;
"military officer" means an officer belonging to Her Majesty's military forces and subject to military law; and
"naval officer" means an officer belonging to Her Majesty's naval forces and subject to the Naval Discipline Act 1957."
36. Section 85(3) shall cease to have effect.
37. Sections 86 to 90 shall cease to have effect.
38.--(1) Section 91 (place for sitting of court-martial and adjournment to other places) shall be amended as follows.
(2) In subsection (1)--
(a) for the words "Her Majesty's dominions" there shall be substituted the words "the United Kingdom"; and
(b) the words from "and the convening officer" to the end shall cease to have effect.
(3) In subsection (2), for the words from "shall" to "direction" there shall be substituted the word "may".
39.--(1) Section 92 (challenges by accused to members of court-martial) shall be amended as follows.
(2) In subsection (1), for the word "officer" there shall be substituted the word "member".
(3) In subsection (2)--
(a) for the word "they" there shall be substituted the words "the officers appointed members"; and
(b) for the words "those officers" there shall be substituted the words "the members".
(4) In subsection (3)--
(a) for the word "officer" there shall be substituted the word "member"; and
(b) for the words from "considered" to the end there shall be substituted the words "determined by the judge advocate".
(5) In subsection (4)--
(a) for the words from "objection" to "it" there shall be substituted the words "an objection to the president is allowed"; and
9 May 1996 : Column 425 (b) for the word "convening" there shall be substituted the words "court administration".
(6) In subsection (5)--
(a) for the words from "objection" to "it" there shall be substituted the words "an objection to any other officer appointed a member of the court is allowed";
(b) for the word "member" in the second place it appears there shall be substituted the word "officer"; and
(c) for the word "members" in the second place it appears there shall be substituted the word "officers".
(7) After subsection (5) there shall be added the following subsection--
"(6) If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Judge Advocate General."
40.--(1) Section 93 (administration of oaths) shall be amended as follows.
(2) In subsection (1)--
(a) after the word "every" there shall be inserted the words "officer appointed a"; and
(b) the words "other than an exempted person" and "judge advocate" shall cease to have effect.
(3) Subsection (1A) shall cease to have effect.
41. In section 94 (courts-martial to sit in open court), after subsection (5) there shall be added the following subsections--
"(6) The judge advocate shall not be present while the other members of the court are deliberating on their finding on any charge.
(7) Any ruling or direction of the judge advocate on a question of law (including a question of procedure or practice) shall be given in open court.
(8) The judge advocate may determine, and give rulings on, questions of law (including questions of procedure and practice) in the absence of the other members of the court and of any officers and other persons under instruction."
42.--(1) Section 95 (dissolution of courts-martial) shall be amended as follows.
(2) In subsection (1)--
(a) for the words "whether before or after" there shall be substituted the word "before"; and
(b) for the word "convening" in both places it appears there shall be substituted the words "court administration".
(3) After subsection (1) there shall be inserted the following subsection--
"(1A) Where, after the commencement of the trial, it appears to the judge advocate necessary or expedient in the interests of the administration of justice that a court-martial should be dissolved, he may by order dissolve the court-martial."
(4) In subsection (3), for the words "convening officer" there shall be substituted the words "judge advocate".
(5) Subsection (4) shall cease to have effect.
43.--(1) Section 96 (decisions of courts-martial) shall be amended as follows.
(2) In subsection (1), for the words from "every" to "court-martial" there shall be substituted the words "the finding of a court-martial and any sentence awarded".
(3) After subsection (1) there shall be inserted the following subsection--
"(1A) The judge advocate shall not be entitled to vote on the finding."
(4) In subsection (3)--
(a) after the word "court" in the second place it appears there shall be inserted the words "entitled to vote on the finding"; and
9 May 1996 : Column 426 (b) for the words "the members" in the second place they appear there shall be substituted the words "those members".
(5) In subsection (5), the words from "or on" to "finding" shall cease to have effect.
44. In section 97(3) (sentence of court-martial to be announced in open court) after the word "mercy" there shall be inserted the words "and any reasons for the sentence".
45.--(1) Section 99 (rules of evidence) shall be amended as follows.
(2) In subsection (1)--
(a) for the words "civil courts" there shall be substituted the words "trials on indictment"; and
(b) for the words "before a civil court" there shall be substituted the words "in a trial on indictment".
(3) In subsection (3), for the words "civil court" there shall be substituted the words "trial on indictment".
46. For section 103 there shall be substituted the following section--
"Rules
103.--(1) The Secretary of State may make rules with respect to--
(a) the investigation, prosecution and trial of, and awarding of punishment for, offences cognizable by courts-martial;
(b) the review of findings and sentences of courts-martial.
(2) Rules under this section may in particular make provision with respect to--
(a) proceedings preliminary to trials by general or district courts-martial;
(b) the appointment of a judge advocate for any preliminary proceedings;
(c) the delegation by court administration officers of any of their functions;
(d) the convening and constitution of general and district courts-martial;
(e) the sittings, adjournment and dissolution of general and district courts-martial;
(f) the procedure to be followed in trials by general and district courts-martial;
(g) the representation of the accused at such trials and any preliminary proceedings;
(h) procuring the attendance of witnesses at such trials and any preliminary proceedings;
(i) enabling a general or district court-martial, in such cases and to such extent as may be prescribed, to amend a charge which is being tried by the court;
(j) enabling a general or district court-martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;
(k) directing that the powers conferred by section 7 of the Bankers' Books Evidence Act 1879 (which enables orders to be made for the inspection of bankers' books for the purposes of legal proceedings) may be exercised for the purposes of a general or district court-martial (whether within or without the United Kingdom) by the commanding officer of the accused or a judge advocate as well as by the court or a judge within the meaning of that Act;
(l) the forms of orders and other documents to be made for the purposes of any provision of this Act or of rules under this section;
9 May 1996 : Column 427 (m) the cases in which, and extent to which, offences may be taken into consideration by a general or district court-martial and the powers of the court in relation to any offences taken into consideration;
(n) the recording of the proceedings of a general or district court-martial;
(o) the procedure to be followed on review of findings and sentences of general or district courts-martial.
(3) Rules made by virtue of paragraph (i) of subsection (2) above shall secure that the power to amend charges is not exercisable in circumstances substantially different from those in which indictments are amendable by a civil court in England, or otherwise than subject to the like conditions, as nearly as circumstances admit, as those subject to which indictments are so amendable.
(4) A rule under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.
(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
47. After section 103 there shall be inserted the following sections--
103A.--(1) Where an officer to whom this subsection applies--
(a) is commanding a body of the regular air force on active service; and
(b) is of opinion that it is not possible without serious detriment to the public service for a charge against a member of that body to be tried by a general or district court-martial,
he may direct that the charge be tried by a field general court-martial.
(2) Subsection (1) above applies to--
(a) the commanding officer who has investigated the charge;
(b) the commanding officer or appropriate superior authority who has determined on a summary dealing that the charge against the accused has been proved, in a case where the accused has elected court-martial trial and that election has not been withdrawn;
(c) where the charge is against an officer or warrant officer, the higher authority to whom the charge has been referred by the commanding officer.
(3) If an officer to whom subsection (1) above applies directs that a charge be tried by a field general court-martial, he shall by order convene a field general court-martial.
(4) The order convening the field general court-martial shall specify--
(a) the date, time and place at which the court-martial is to sit;
(b) the officers who are to be members of the court-martial;
(c) which of those officers is to be president of the court-martial.
(5) At any time before the commencement of the trial, the officer who convened the field general court-martial may, in accordance with rules under section 103C of this Act, amend or withdraw the order convening the court-martial.
(6) Subject to subsection (7) below, the officer convening the field general court-martial shall not be a member of the court-martial.
(7) The officer convening the field general court-martial may be its president if, in his opinion, it is not possible, without serious detriment to the public service, to appoint another officer as president.
Constitution of field general courts martial
103B.--(1) Subject to subsections (2) and (3) below, a field general court-martial shall consist of the president and not less than two other air-force officers.
(2) If the officer who convened the field general court-martial is of opinion that three air-force officers having suitable qualifications are not available without serious detriment to the public service, the field general court-martial shall consist of the president and one other air-force officer.
(3) Unless the officer convening the field general court-martial is of opinion that a judge advocate is not available without serious detriment to the public service, a judge advocate shall be a member of the court-martial.
(4) In subsection (3) above, "a judge advocate" means a judge advocate appointed by or on behalf of the Judge Advocate General or, if the officer convening the field general court-martial is of opinion that no such judge advocate is available without serious detriment to the public service, a qualified officer appointed by that officer.
(5) An officer is "qualified" for the purposes of subsection (4) above if he is--
(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.
(6) The president of a field general court-martial shall not be below the rank of flight lieutenant.
(7) If a field general court-martial is to be convened at any place where in the opinion of the officer convening it the necessary number of air-force officers having suitable qualifications is not available to form the court, and cannot be made available without serious detriment to the public service, the officer may appoint as any member of the court (but not as its president) any naval or military officer of corresponding rank to that required for an air-force officer.
(8) A field general court-martial shall have the powers of a general court-martial except that where less than three officers are members of the court the sentence shall not exceed imprisonment for a term of two years or detention under section 71AA of this Act for a period of two years.
(9) In this section--
"air-force officer" means an officer belonging to Her Majesty's air forces and subject to air-force law;
"military officer" means an officer belonging to Her Majesty's military forces and subject to military law; and
"naval officer" means an officer belonging to Her Majesty's naval forces and subject to the Naval Discipline Act 1957.
Field General Court Martial Rules
103C.--(1) The Secretary of State may by statutory instrument make rules with respect to field general courts-martial.
(2) Rules under this section may in particular--
(a) provide for any provision of this Act relating to general or district courts-martial or the proceedings of such courts-martial to apply to field general courts-martial or the proceedings of such courts-martial with the necessary modifications;
(b) make any provision with respect to field general courts-martial which may be made with respect to general and district courts-martial by rules under section 103 of this Act."
48. Sections 104 to 106 shall cease to have effect.
49. The Naval Discipline Act 1957 shall be amended as follows.
50. Section 53 shall cease to have effect.
51. After section 53 there shall be inserted the following sections--
"Court administration officers
53A. In this Act--
"court administration officer" means an officer (or other person) appointed by the Defence Council to order courts-martial and perform such other functions as may be prescribed by rules under section 58 of this Act; and
"the court administration officer", in relation to a court-martial, means the court administration officer who ordered the court-martial and includes his successor or any person for the time being exercising his or his successor's functions.
Judge advocates
53B.--(1) In this Act "the judge advocate", in relation to a court-martial, means the judge advocate appointed by or on behalf of the Chief Naval Judge Advocate to be a member of the court-martial.
(2) No person shall be appointed as the judge advocate unless he is--
(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate in Scotland of at least five years' standing or a solicitor who has had a right of audience in the Court of Session or the High Court of Justiciary for at least five years; or
(c) a member of the Bar of Northern Ireland of at least five years' standing.
(3) Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.
(4) Any directions given by the judge advocate shall be binding on the court.
Ordering of courts martial
53C.--(1) On being notified by the prosecuting authority of the charge preferred, a court administration officer shall order a court-martial.
(2) The order assembling the court-martial shall specify--
(a) the date, time and place at which the court-martial is to sit;
(b) the officers who are to be members of the court-martial;
(c) which of those officers is to be president of the court-martial;
(d) any other officers appointed for the purpose of filling vacancies,
and shall state that a judge advocate appointed by or on behalf of the Chief Naval Judge Advocate is to be a member of the court-martial.
(3) At any time before the commencement of the trial, the court administration officer may, in accordance with rules under section 58 of this Act, amend or withdraw the order assembling the court-martial.
(4) The following shall not be eligible to be members of the court-martial for the trial of a charge--
(a) the court administration officer;
(b) an officer who at any time between the date on which the preliminary charge was reported to the commanding officer of the accused and the date of the trial has been the commanding officer of the accused;
(c) the higher authority to whom the preliminary charge against the accused was referred;
(d) any other officer who has investigated the subject matter of the charge against the accused;
9 May 1996 : Column 430 (e) any other officer who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused.
(5) In subsection (4) above "the preliminary charge" means the charge referred to higher authority by the commanding officer of the accused."
52. For section 54 there shall be substituted the following section--
"Composition of courts martial
54.--(1) A court-martial shall consist of the president, not less than four nor more than eight other naval officers and the judge advocate.
(2) An officer shall not be appointed a member of a court-martial unless he is of or above the rank of lieutenant and he has been an officer of any of Her Majesty's naval, military or air forces for a period of not less than three years or for periods amounting in the aggregate to not less than three years.
(3) The officers appointed members of a court-martial shall not all belong to the same ship or naval establishment.
(4) The president of a court-martial shall not be below the rank of captain, and in the case of a court-martial for the trial of an officer of flag rank shall be an officer of flag rank.
(5) A court-martial for the trial of an officer of flag rank shall not include any member below the rank of captain.
(6) A court-martial for the trial of a commodore or captain shall not include any member below the rank of commander.
(7) A court-martial for the trial of a commander shall include at least two members, in addition to the president, who are not below the rank of commander.
(8) If, in the opinion of the court administration officer, the necessary number of naval officers having suitable qualifications is not, with due regard to the public service, available, he may appoint as any member of the court (but not as its president) any military or air-force officer of corresponding rank to that required for a naval officer.
(9) In this section--
"air-force officer" means an officer belonging to Her Majesty's air forces and subject to air-force law;
"military officer" means an officer belonging to Her Majesty's military forces and subject to military law; and
"naval officer" means an officer belonging to Her Majesty's naval forces and subject to this Act."
53. Section 55 shall cease to have effect.
54.--(1) Section 56 (place and time of sittings of courts-martial) shall be amended as follows.
(2) In subsection (1), for the words from "appointed" to the end there shall be substituted the words "specified in the order assembling the court".
(3) In subsection (2), the words from "and shall" to the end shall cease to have effect.
(4) In subsection (3), for the word "prosecutor" there shall be substituted the words "prosecuting authority".
55. After section 56 there shall be inserted the following section--
"Dissolution of courts martial
56A.--(1) Where, before the commencement of the trial, it appears to the court administration officer necessary or expedient in the interests of the administration of justice that a court-martial be dissolved, he may by order dissolve the court-martial.
(2) Where, after the commencement of the trial, it appears to the judge advocate necessary or expedient in the interests of the administration of justice that a court-martial be dissolved, he may by order dissolve the court-martial.
(3) If after the commencement of the trial the president dies or is otherwise unable to attend, the court-martial shall be dissolved.
9 May 1996 : Column 431
(4) Where a court-martial is dissolved the accused may be tried by another court."
56.--(1) Section 57 (quorum) shall be amended as follows.
(2) Subsections (1) and (3) shall cease to have effect.
(3) In subsection (2)--
(a) for the word "members" in both places it appears there shall be substituted the word "officers"; and
(b) after the word "that" there shall be inserted the words "an officer appointed".
57. For section 58 there shall be substituted the following section--
"Rules
58.--(1) The Secretary of State may make rules with respect to--
(a) the investigation, prosecution and trial of, and the awarding of punishment for, offences cognizable by courts-martial;
(b) the review of findings and sentences of courts-martial.
(2) Rules under this section may in particular make provision with respect to--
(a) proceedings preliminary to trials by courts-martial;
(b) the appointment of a judge advocate for any preliminary proceedings;
(c) the delegation by court administration officers of any of their functions;
(d) the ordering and composition of courts-martial;
(e) the sittings, adjournment and dissolution of courts-martial;
(f) the procedure to be followed in trials by courts-martial;
(g) the functions of the clerk of the court and the exercise by him of those functions;
(h) the representation of the accused at trials by courts-martial and any preliminary proceedings;
(i) procuring the attendance of witnesses at such trials and any preliminary proceedings;
(j) enabling a court-martial, in such cases and to such extent as may be prescribed by the rules, to amend a charge which is being tried by the court;
(k) enabling a court-martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;
(l) directing that the powers conferred by section 7 of the Bankers' Books Evidence Act 1879 (which enables orders to be made for the inspection of bankers' books for the purposes of legal proceedings) may be exercised for the purposes of a court-martial (whether within or without the United Kingdom) by the commanding officer of the accused or a judge advocate, as well as by the court or a judge within the meaning of that Act;
(m) the forms of orders and other documents to be made for the purposes of any provision of this Act or of rules under this section;
(n) the cases in which, and extent to which, offences may be taken into consideration by a court-martial and the powers of the court in relation to any offences taken into consideration;
(o) the recording of the proceedings of a court-martial;
(p) the procedure to be followed on review of findings and sentences of courts-martial.
9 May 1996 : Column 432
(3) Rules made by virtue of paragraph (j) of subsection (2) above shall secure that the power to amend charges is not exercisable in circumstances substantially different from those in which indictments are amendable by a civil court in England, or otherwise than subject to the like conditions, as nearly as circumstances admit, as those subject to which indictments are so amendable.
(4) Rules under this section which are inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.
(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
58.--(1) Section 59 (challenges by accused to members of court-martial) shall be amended as follows.
(2) In subsection (1)--
(a) after the words "Before the" there shall be inserted the words "officers appointed";
(b) for the words "officers constituting" there shall be substituted the words "members of"; and
(c) for the words from "being" to the end there shall be substituted the words "any of those members".
(3) In subsection (2)--
(a) for the word "officer" there shall be substituted the word "member"; and
(b) for the words from "considered" to the end there shall be substituted the words "determined by the judge advocate".
(4) For subsection (3) there shall be substituted the following subsection--
"(3) If an objection to the president is allowed, the court shall be dissolved."
(5) In subsection (4)--
(a) for the words from "objection" to "the member" there shall be substituted the words "an objection to any other officer appointed a member of the court is allowed";
(b) for the word "nominated" there shall be substituted the word "appointed"; and
(c) for the words "section fifty-four" there shall be substituted the words "section 53C".
(6) After subsection (4) there shall be inserted the following subsection--
"(4A) If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Chief Naval Judge Advocate."
(7) Subsection (5) shall cease to have effect.
(8) In subsection (6)--
(a) after the words "After the" there shall be inserted the words "officers appointed"; and
(b) for the words "Defence Council" there shall be substituted the words "reviewing authority".
59.--(1) Section 60 (administration of oaths) shall be amended as follows.
(2) For subsection (1) there shall be substituted the following subsection--
"(1) An oath shall be administered separately to each member of a court-martial, to the clerk of the court and any officer or other person in attendance for instruction, and to any person appointed to attend as interpreter."
(3) In subsection (5), for the words "General Orders" there shall be substituted the word "rules".
60. In section 61 (courts-martial to sit in open court), after subsection (2) there shall be added the following subsections--
"(3) A court-martial shall sit in closed court while deliberating on their finding and sentence on any charge.
(4) A court-martial may sit in closed court on any other deliberation amongst the members.
9 May 1996 : Column 433
(5) Where a court-martial sits in closed court no person shall be present except the members of the court and such other persons as may be prescribed by rules under section 58 of this Act.
(6) The judge advocate shall not be present while the other members of the court are deliberating on their finding on any charge.
(7) Any ruling or direction of the judge advocate on a question of law (including a question of procedure or practice) shall be given in open court.
(8) The judge advocate may determine, and give rulings on, questions of law (including questions of procedure and practice) in the absence of the other members of the court."
61.--(1) Section 62 (findings and sentences of courts-martial) shall be amended as follows.
(2) In subsection (1), for the words from "every" to "court-martial" there shall be substituted the words "the finding of a court-martial and any sentence awarded".
(3) After subsection (1) there shall be inserted the following subsection--
"(1A) The judge advocate shall not be entitled to vote on the finding."
(4) In subsection (3), after the word "mercy" there shall be inserted the words "and any reasons for the sentence".
(5) In subsection (4)--
(a) after the word "court" in the second place it appears there shall be inserted the words "entitled to vote on the finding"; and
(b) for the words "the members" in the second place they appear there shall be substituted the words "those members".
62. In section 64(1) (summoning of witnesses), for the words "clerk of the court" there shall be substituted the words "court administration officer".
63. After section 64 there shall be inserted the following sections--
"Rules of evidence
64A.--(1) The rules as to the admissibility of evidence to be observed in proceedings before courts-martial shall, subject to Schedule 13 to the Criminal Justice Act 1988 (evidence before courts-martial etc) and to service modifications, be the same as those observed in trials on indictment in England, and no person shall be required in proceedings before a court-martial to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment in England.
(2) In this section "service modifications" means such modifications as the Secretary of State may by regulations made by statutory instrument prescribe, being modifications which appear to him to be necessary or proper for the purposes of proceedings before a court-martial; and it is hereby declared that in this section--
"rules" includes rules contained in or made by virtue of an enactment; and
"enactment" includes an enactment contained in an Act passed after this Act.
(3) Regulations under subsection (2) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(4) A court-martial shall take judicial notice of all matters of notoriety, including all matters within the general service knowledge of the court, and of all other matters of which judicial notice would be taken in a trial on indictment in England.
Proofs at courts martial by written statement
64B.--(1) Without prejudice to section 64A above, section 9 of the Criminal Justice Act 1967 (proof by written statement) shall apply subject to subsection (2) below and to service
9 May 1996 : Column 434 modifications, for the purposes of proceedings before courts-martial (whether held in the United Kingdom or not) as it applies to proceedings on indictment.
(2) The statements rendered admissible by this section are statements made--
(a) in the United Kingdom by any person, and
(b) outside the United Kingdom by any person who at the time of making the statement was--
(i) a person subject to service law, or
(ii) a person to whom Parts I and II of this Act are applied by section 117 or section 118 of this Act, or to whom Part II of the Army Act 1955 or Part II of the Air Force Act 1955 is applied by section 208A or section 209 of the Army Act 1955 or the Air Force Act 1955 respectively,
and the persons mentioned in this paragraph include persons to whom section 119 of this Act, section 131 of the Army Act 1955 or section 131 of the Air Force Act 1955 apply.
(3) In subsection (1) above "service modifications" means--
(a) modifications made by any regulations under section 12 of the Criminal Justice Act 1967 in force on the coming into force of this section, and
(b) such modifications in the said section 9, as applied by subsection (1) above, as the Secretary of State may by regulations made by statutory instrument prescribe thereafter, being modifications which appear to him to be necessary or proper for the purpose of the operation of that section in relation to proceedings before a court-martial.
(4) Regulations under subsection (3)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Section 89 of the said Act of 1967 (punishment of making false statements tendered under section 9) shall apply to any statement rendered admissible by this section.
Proof of service facts and records
64C.--(1) This section applies with respect to proceedings before a court-martial.
(2) A letter, return or other document stating that any person--
(a) was or was not serving at any specified time or during any specified period in any part of Her Majesty's forces;
(b) was discharged from any part of those forces at or before any specified time;
(c) held or did not hold at any specified time any specified rank or appointment in any of those forces;
(d) had at or before any specified time been attached, posted or transferred to any part of those forces;
(e) at any specified time or during any specified time was or was not serving or held or did not hold any rank or appointment in any particular country or place; or
(f) was or was not at any specified time authorised to use or wear any decoration, badge or emblem;
shall if purporting to be issued by or on behalf of the Defence Council or by a person authorised by them, be evidence of the matter stated in the document.
(3) A record--
(a) made in any service record in pursuance of any Act or of Queen's Regulations, or otherwise in pursuance of naval duty; and
(b) purporting to be signed by the commanding officer or by any person whose duty it was to make or keep the records,
may be received without formal proof in all trials under this Act as prima facie evidence of the record.
(4) A copy of a record (including the signature thereto) such as is mentioned in subsection (3) above, purporting to be certified to be a true copy by a person stated in the certificate
9 May 1996 : Column 435 to have the custody of the record, may be received without formal proof in all trials under this Act as prima facie evidence of the record.
(5) A document purporting to be issued by order of the Defence Council and to contain instructions given or regulations made by the Defence Council shall be evidence of the giving of the instructions or making of the regulations and of their contents.
(6) A certificate purporting to be issued by or on behalf of the Defence Council or by a person authorised by them, and stating--
(a) that a decoration of a description specified in or, as annexed to the certificate is a military, naval or air force decoration; or
(b) that a badge or emblem of a description specified in or, as annexed to the certificate is one supplied or authorised by the Defence Council;
shall be evidence of the matters stated in the certificate.
(7) A certificate purporting to be signed by a person's commanding officer or any officer authorised by him to give the certificate, and stating the contents of, or of any part of, standing orders or other routine orders of a continuing nature made for--
(a) any ship, train or aircraft;
(b) any formation or unit or body of Her Majesty's forces; or
(c) any command or other area, or place;
shall in proceedings against that person be evidence of the matters stated in the certificate.
(8) Any document which would be evidence in any proceedings under the Army Act 1955 or the Air Force Act 1955 shall in like manner, subject to the like conditions, and for the like purposes, be evidence in a court-martial under this Act.
Privilege of witnesses and others at courtsmartial
64D. A witness before a court-martial or any other person whose duty it is to attend on or before the court shall be entitled to the same immunities and privileges as a witness before the High Court in England."
64. In section 28(2) of the Courts-Martial (Appeals) Act 1951 (qualification for appointment as Judge Advocate of Her Majesty's Fleet), in paragraph (b), for the words from "been" to "and" there shall be substituted the words "had a right of audience in the Court of Session or".
65. In section 31 of that Act (qualification for appointment as Judge Advocate General and his assistants), in paragraph (b) in each of subsections (1), (2) and (3), for the words from "been" to "and" there shall be substituted the words "had a right of audience in the Court of Session or".
66. The Army Act 1955 shall be amended as follows.
67. In section 134 (persons not to be tried under Act for offences already disposed of), in subsection (1)(b), for the words "been found guilty on the charge" there shall be substituted the words "had a finding that the charge has been proved recorded against him".
68. Section 139 shall cease to have effect.
69. In section 143(1) (interpretation of Part II)--
(a) the definition of "convening officer" shall cease to have effect; and
(b) in the definition of "prescribed", for the words "Rules of Procedure" there shall be substituted the words "rules under section 103 of this Act".
70. In section 198 (general provisions as to evidence), in subsection (9), after the words "that Act" there shall be inserted the words ", or in any proceedings under the Naval Discipline Act 1957, by virtue of section 64C of that Act,".
71. In section 209(3) (modifications of Act in relation to trial of civilians by courts-martial)--
(a) paragraph (d) shall cease to have effect;
(b) in paragraph (fa), the words "constituted under section 87 above" and "constituted under section 88 above" shall cease to have effect; and
(c) after paragraph (fa) there shall be inserted the following paragraph--
"(faa) references to the officers appointed members of a court-martial shall be construed as including references to persons who are members of a court-martial by virtue of paragraph (fa) above;".
72.--(1) Section 209(3B) (modifications of Act in its application to any area for which Standing Civilian Courts are established) shall be amended as follows.
(2) After paragraph (a) there shall be inserted the following paragraph--
"(aa) section 83 above shall have effect as if after subsection (1) there were inserted the following subsection--
"(1A) Regulations under this section may provide for sections 76 to 76C of this Act to have effect subject to such modifications as may be specified in relation to charges which may be tried by Standing Civilian Courts and which are brought against persons whom such courts may try.";"
(3) For paragraph (b) there shall be substituted the following paragraph--
"(b) section 103(1) above shall have effect as if the following paragraph were inserted after paragraph (b)--
"(c) the hearing by courts-martial of appeals against findings and sentences of Standing Civilian Courts.";"
(4) In paragraph (c)--
(a) for "77, 79 and 80" there shall be substituted "to 76C"; and
(b) for the words from "consequential" to "Procedure" there shall be substituted the words "as may be specified by regulations under section 83 of this Act".
73. In section 211 (application of Act to reserve forces), in subsection (7), for the words "subsection (3) of section seventy-eight" there shall be substituted the words "section 76C(2)".
74. In section 225(1) (general provisions as to interpretation of Act)--
(a) in the definition of "appropriate superior authority" for the words from "has" to "and" there shall be substituted the words "means a person who may act as an appropriate superior authority by virtue of";
(b) after the definition of "corresponding rank" there shall be inserted the following definition--
"court administration officer" and "the court administration officer" have the meanings assigned to them by section 84A of this Act;";
(c) after the definition of "Her Majesty's air forces", "Her Majesty's military forces" and "Her Majesty's naval forces" there shall be inserted the following definition--
"the judge advocate" has the meaning assigned to it by section 84B(1) of this Act;";
(d) after the definition of "property" there shall be inserted the following definition--
"the prosecuting authority" has the meaning assigned to it by section 83A(1) of this Act;"; and
(e) the definition of "Rules of Procedure" shall cease to have effect.
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75. In Schedule 5A (powers of court on trial of civilian), in paragraphs 13(2)(a) and 14(6)(a), for the words "Rules of Procedure" there shall be substituted the word "rules".
76. The Air Force Act 1955 shall be amended as follows.
77. In section 134 (persons not to be tried under Act for offences already disposed of), in subsection (1)(b), for the words "been found guilty on the charge" there shall be substituted the words "had a finding that the charge has been proved recorded against him".
78. Section 139 shall cease to have effect.
79. In section 143(1) (interpretation of Part II)--
(a) the definition of "convening officer" shall cease to have effect; and
(b) in the definition of "prescribed", for the words "Rules of Procedure" there shall be substituted the words "rules under section 103 of this Act".
80. In section 198 (general provisions as to evidence), in subsection (9), after the words "that Act" there shall be inserted the words ", or in any proceedings under the Naval Discipline Act 1957, by virtue of section 64C of that Act,".
81. In section 209(3) (modifications of Act in relation to trial of civilians by courts-martial)--
(a) paragraph (d) shall cease to have effect;
(b) in paragraph (fa), the words "constituted under section 87 above" and "constituted under section 88 above" shall cease to have effect; and
(c) after paragraph (fa) there shall be inserted the following paragraph--
"(faa) references to the officers appointed members of a court-martial shall be construed as including references to persons who are members of a court-martial by virtue of paragraph (fa) above;".
82.--(1) Section 209(3B) (modifications of Act in its application to any area for which Standing Civilian Courts are established) shall be amended as follows.
(2) After paragraph (a) there shall be inserted the following paragraph--
"(aa) section 83 above shall have effect as if after subsection (1) there were inserted the following subsection--
"(1A) Regulations under this section may provide for sections 76 to 76C of this Act to have effect subject to such modifications as may be specified in relation to charges which may be tried by Standing Civilian Courts and which are brought against persons whom such courts may try.";"
(3) For paragraph (b) there shall be substituted the following paragraph--
"(b) section 103(1) above shall have effect as if the following paragraph were inserted after paragraph (b)--
"(c) the hearing by courts-martial of appeals against findings and sentences of Standing Civilian Courts.";"
(4) In paragraph (c)--
(a) for "77, 79 and 80" there shall be substituted "to 76C"; and
(b) for the words from "consequential" to "Procedure" there shall be substituted the words "as may be specified by regulations under section 83 of this Act".
83. In section 210 (application of Act to reserve forces), in subsection (7), for the words "subsection (3) of section seventy-eight" there shall be substituted the words "section 76C(2)".
84. In section 223(1) (general provisions as to interpretation of Act)--
(a) in the definition of "appropriate superior authority" for the words from "has" to "and" there shall be substituted the words "means a person who may act as an appropriate superior authority by virtue of";
(b) after the definition of "corresponding rank" there shall be inserted the following definition--
"court administration officer" and "the court administration officer" have the meanings assigned to them by section 84A of this Act;";
(c) after the definition of "Her Majesty's air forces", "Her Majesty's military forces" and "Her Majesty's naval forces" there shall be inserted the following definition--
"the judge advocate", in relation to a court-martial, has the meaning assigned to it by section 84B(1) of this Act;";
(d) after the definition of "property" there shall be inserted the following definition--
"the prosecuting authority" has the meaning assigned to it by section 83A(1) of this Act;"; and
(e) the definition of "Rules of Procedure" shall cease to have effect.
85. In Schedule 5A (powers of court on trial of civilian), in paragraphs 13(2)(a) and 14(6)(a), for the words "Rules of Procedure" there shall be substituted the word "rules".
86. The Naval Discipline Act 1957 shall be amended as follows.
87. In section 65(4) (contempt of court-martial by civilians), for the words "subsection (5) of section fifty" there shall be substituted the words "section 52G(9)".
88. In section 66(1) (record of proceedings of court-martial) for the words from "judge" to "it" there shall be substituted the words "court administration officer shall transmit the record of the proceedings".
89. In section 76 (restitution or compensation on conviction of larceny etc.)--
(a) in subsection (6)(a), the words from "by the officer" to the end shall cease to have effect; and
(b) in subsection (6)(b), for the words "section forty-nine" there shall be substituted the words "section 52D".
90. In section 81 (place of imprisonment or detention)--
(a) in subsection (3)(c) for the words "officer who ordered the court-martial" there shall be substituted the words "court-martial by which he is tried"; and
(b) in subsection (3)(d) for the words "section forty-nine" there shall be substituted the words "section 52D".
91. In section 85(2) (commencement of sentences) for the words "section forty-nine" there shall be substituted the words "section 52D".
92. In section 103(1) (arrest under warrants of naval authorities) for the words from "subsection (4)" to the end there shall be substituted the words "regulations under section 52E(2)(a) above may exercise the powers of that person's commanding officer".
93. In section 129(1) (jurisdiction of civil courts) for the words "section forty-nine" there shall be substituted the words "section 52D".
94. In section 135(1) (general provisions as to interpretation of Act)--
(a) after the definition of "civil prison" there shall be inserted the following definition--
"the commanding officer", in relation to a person charged with an offence, has the meaning assigned to it by section 52E(1) of this Act;";
(b) after the definition of "constable" there shall be inserted the following definition--
"court administration officer" and "the court administration officer" have the meanings assigned to them by section 53A of this Act;";
(c) after the definition of "Her Majesty's forces" there shall be inserted the following definition--
"the judge advocate", in relation to a court-martial, has the meaning assigned to it by section 53B(1) of this Act;"; and
(d) after the definition of "property" there shall be inserted the following definition--
"the prosecuting authority" has the meaning assigned to it by section 52H(1) of this Act;".
95. In Schedule 1 (application of Act to marine forces), in paragraph 3, for the words "section forty-nine" there shall be substituted the words "section 52D".
96. In Schedule 2 (application of Act to attached military and air forces)--
(a) in paragraph 6, for the words "section forty-nine" there shall be substituted the words "section 52D"; and
(b) in paragraph 7, for the words "section fifty" there shall be substituted the words "section 52G" and for the words "subsection (3)" there shall be substituted the words "subsection (5)".
97. In Schedule 4 (application of Act to certain civilians), in paragraph 4--
(a) for the words "section forty-nine" in both places there shall be substituted the words "section 52D"; and
(b) the words from "and subsections" to "not apply" shall cease to have effect.
98. In Schedule 4A (powers of court on trial of civilian), in paragraphs 13(2)(a) and 14(6)(a), for the words "General Orders" there shall be substituted the word "rules".
99. In section 12 of the Criminal Justice Act 1967 (application to courts-martial of certain provisions relating to admissibility of evidence)--
(a) after the words "Air Force Act 1955" in the first place they appear there shall be inserted the words ", or section 64A(1) of the Naval Discipline Act 1957,"; and
(b) for paragraphs (a) and (b) there shall be substituted the words "sections 10 and 11 above shall apply to proceedings before courts-martial".
100. In section 11 of the Civil Evidence Act 1968 (convictions as evidence in civil proceedings), in subsection (6), for the words "section 50" there shall be substituted the words "section 52G".
101. In section 7 of the Civil Evidence Act (Northern Ireland) 1971 (convictions as evidence in civil proceedings), in subsection (6), for the words "section 50" there shall be substituted the words "section 52G".
102. In section 6 of the Armed Forces Act 1976 (establishment of Standing Civilian Courts), in subsection (15), for the words "authority who directs the trial or trials" there shall be substituted the words "court administration officer notified by the prosecuting authority that the trial or trials are".
103.--(1) Schedule 3 to that Act (Standing Civilian Courts) shall be amended as follows.
(2) In paragraph 1 (interpretation)--
(a) after the definition of "the court" there shall be inserted the following definitions--
"court administration officer" has the same meaning as in the Army Act 1955;
"the court administration officer", in relation to a civilian, means the court administration officer notified by the prosecuting authority that the civilian is to be tried by the court and includes his successor or any person for the time being exercising his or his successor's functions;
"the higher authority", in relation to a civilian, means the higher authority who referred his case to the prosecuting authority;";
(b) the definition of "the directing officer" shall cease to have effect; and
(c) after the definition of "prescribed" there shall be inserted the following definition--
"the prosecuting authority"--
(a) in the case of a civilian to whom Part II of the Army Act 1955 applies, has the same meaning as in that Act;
(b) in the case of a civilian to whom Part II of the Air Force Act 1955 applies, has the same meaning as in that Act;".
(3) In paragraph 2 (sittings of the Standing Civilian Court)--
(a) in sub-paragraphs (1) and (3), for the word "directing" there shall be substituted the words "court administration"; and
(b) in sub-paragraph (2), for the word "shall" there shall be substituted the word "may" and the words from "if so" to "direction" shall cease to have effect.
(4) In paragraph 4 (right of accused to elect trial by court-martial)--
(a) in sub-paragraph (4), for the words from "report" to the end there shall be substituted the words "shall refer the case to the prosecuting authority"; and
(b) sub-paragraph (5) shall cease to have effect.
(5) For paragraph 6 there shall be substituted the following paragraph--
"Unfitness to stand trial and insanity
6.--(1) Where on a trial by the court the question arises (whether at the instance of the defence or otherwise)--
(a) whether the accused is fit to stand trial, or
(b) where it appears to the court that the accused did the act or made the omission constituting the offence with which he is charged, whether he was insane at the time of the act or omission concerned,
the court shall adjourn the hearing and refer the case to the prosecuting authority.
(2) For the purposes of this paragraph a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales."
(6) Paragraph 7 shall cease to have effect.
(7) In paragraph 8 (re-trial where Standing Civilian Court ceases to be properly constituted)--
(a) in sub-paragraph (1), for the words from the beginning to "directing" there shall be substituted the words "The court administration";
(b) in sub-paragraphs (2) and (3), for the word "directing" there shall be substituted the words "court administration".
(8) In paragraph 12 (procedures etc. of Standing Civilian Court)--
(a) in sub-paragraph (1), after the word "namely" there shall be inserted the following paragraph--
"(aa) the prosecution of offences which may be tried by Standing Civilian Courts;";
(b) after sub-paragraph (4)(b) there shall be inserted the following paragraphs--
"(ba) proceedings preliminary to trials by Standing Civilian Courts;
(bb) the appointment of a magistrate for any preliminary proceedings;";
(c) in sub-paragraph (4)(f), after the word "trials" there shall be inserted the words "and any preliminary proceedings";
(d) in sub-paragraph (4)(h), the words "and the directing officer" shall cease to have effect; and
(e) sub-paragraph (4)(m) shall cease to have effect.
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(9) In paragraph 18 (appeals to courts-martial)--
(a) in sub-paragraphs (3) and (4), for the words "directing officer" there shall be substituted the words "higher authority";
(b) in sub-paragraph (4), for the words "Rules of Procedure" there shall be substituted the word "rules"; and
(c) in sub-paragraph (10), the words "or as judge advocate" shall cease to have effect.
(10) In paragraph 20 (review of findings and sentences of Standing Civilian Court), in sub-paragraph (9), for the words "directing officer" there shall be substituted the words "higher authority".
104. The Police and Criminal Evidence Act 1984 shall be amended as follows.
105. In section 67(12)(a), the definition of "court-martial" in section 82(1) and section 113(11)(a), for the words "section 50" there shall be substituted the words "section 52G".
106. In section 72(1) (meaning of certain expressions used in Part VII), in the definition of "proceedings"--
(a) in paragraph (a), for the words "or the Air Force Act 1955" there shall be substituted the words ", the Air Force Act 1955 or the Naval Discipline Act 1957"; and
(b) in paragraph (b)(i), the words from "or from" to "1957" shall cease to have effect.
107. In section 82(1) (meaning of certain expressions used in Part VIII), in the definition of "proceedings"--
(a) in paragraph (a), for the words "or the Air Force Act 1955" there shall be substituted the words ", the Air Force Act 1955 or the Naval Discipline Act 1957"; and
(b) in paragraph (b)(i), the words from "or from" to "1957" shall cease to have effect.
108. In section 146 of the Criminal Justice Act 1988 (evidence before courts-martial etc.) for the words "section 50" there shall be substituted the words "section 52G".
109.--(1) Schedule 13 to that Act (evidence before courts-martial etc.) shall be amended as follows.
(2) In paragraph 1 (interpretation)--
(a) for the words "Rules of Procedure" there shall be substituted the word "rules";
(b) for the words "General Orders" there shall be substituted the word "rules"; and
(c) for the words "section 50" there shall be substituted the words "section 52G".
(3) In paragraph 4 (application of section 26 of the Act of 1988)--
(a) for the words "section 77" in both places they appear there shall be substituted the words "section 76B"; and
(b) for the words "section 49" there shall be substituted the words "section 52D".
(4) In paragraph 7 (forms of evidence and glossaries)--
(a) for the words "section 50" there shall be substituted the words "section 52G";
(b) for the words "Rules of Procedure" there shall be substituted the word "rules"; and
(c) for the words "General Orders" there shall be substituted the word "rules".
110. In Article 66(11)(a) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (codes of practice - supplementary), for the words "section 50" there shall be substituted the words "section 52G".
111. In section 39 of the Criminal Justice and Public Order Act 1994 (power to apply sections 34 to 38 to armed forces), in subsection (2)(g), for the words "section 50" there shall be substituted the words "section 52G".'.--[Mr. Soames.]
Brought up, read the First and Second time, and added to the Bill.
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