Armed Forces Discipline Bill [H.L.]

Armed Forces Discipline Bill [H.L.] - continued	House of Commons
Election for court-martial trial - continued

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Limit on powers of courts-martial where accused elected court-martial trial.

12. - (1) After section 85 of each of the 1955 Acts there is inserted-

"Powers of court-martial where accused elected court-martial trial.	85A. - (1) Where a court-martial tries a person in pursuance of an election for court-martial trial, the court shall not award any punishment which could not have been awarded by the commanding officer or appropriate superior authority who would have dealt summarily with the preliminary charge if the election had not been made.
	(2) In subsection (1) above "the preliminary charge" means the charge which would have been dealt with summarily had the accused not elected court-martial trial.
	(3) For the purposes of this section a court-martial is not to be regarded as trying a person in pursuance of an election for court-martial trial if, since the election was made, the prosecuting authority has referred the charge back to the commanding officer under section 83BB of this Act."

(2) In section 85(1) of each of the 1955 Acts (powers of general courts-martial) for "and to award" there is substituted "and, subject to section 85A below, to award".

(3) After section 62 of the 1957 Act there is inserted-

"Powers of court-martial where accused elected court-martial trial.	62ZA. - (1) Where a court-martial tries a person in pursuance of an election for court-martial trial, the court shall not award any punishment which could not have been awarded by the officer who would have tried the preliminary charge summarily if the election had not been made.
	(2) In subsection (1) above, "the preliminary charge" means the charge which would have been tried summarily had the accused not elected court-martial trial.
	(3) Where regulations under section 52F of this Act would have prevented a punishment of a particular description awarded by the officer from taking effect without the approval of another person, it shall be assumed for the purposes of subsection (1) above that the approval would have been obtained.
	(4) For the purposes of this section a court-martial is not to be regarded as trying a person in pursuance of an election for court-martial trial if, since the election was made, the prosecuting authority has referred the charge back to the commanding officer under section 52II of this Act."

Functions of prosecuting authority

Functions of prosecuting authority.

13. Schedule 2 to this Act (which makes amendments of the 1955 Acts and the 1957 Act relating to the functions of the prosecuting authority) shall have effect.

Summary appeal courts

Summary appeal courts.

14. - (1) After section 83 of each of the 1955 Acts there is inserted-

	"The summary appeal court
The summary appeal court.	83ZA. - (1) There shall be a court (in this Act referred to as "the summary appeal court") for the purpose of hearing appeals against findings recorded and punishments awarded by commanding officers and appropriate superior authorities on dealing summarily with charges.
	(2) The court shall consist of-
	(a) judge advocates appointed under section 83ZB of this Act, and
	(b) officers qualified under section 83ZC of this Act to be members of the court.
	(3) The court-
	(a) may sit in two or more divisions, and
	(b) may sit in any place, whether within or outside the United Kingdom.
	(4) There shall be a court administration officer for the court, who shall be an officer (or other person) appointed by the Defence Council.
	(5) The court shall sit at such times and in such places as may be determined by the court administration officer.
	(6) The court administration officer shall perform such other functions as may be prescribed by rules under section 83ZJ of this Act."

(2) After section 52F of the 1957 Act there is inserted-

	"The summary appeal court
The summary appeal court.	52FF. - (1) There shall be a court (in this Act referred to as "the summary appeal court") for the purpose of hearing appeals against findings recorded and punishments awarded on summary trial.
	(2) The court shall consist of-
	(a) judge advocates appointed under section 52FG of this Act, and
	(b) officers qualified under section 52FH of this Act to be members of the court.
	(3) The court-
	(a) may sit in two or more divisions, and
	(b) may sit in any place, whether within or outside the United Kingdom.
	(4) There shall be a court administration officer for the court, who shall be an officer (or other person) appointed by the Defence Council.
	(5) The court shall sit at such times and in such places as may be determined by the court administration officer.
	(6) The court administration officer shall perform such other functions as may be prescribed by rules under section 52FP of this Act."

Appointment of judge advocates.

15. - (1) After section 83ZA of each of the 1955 Acts there is inserted-

"Judge advocates.	83ZB. - (1) Judge advocates in relation to the summary appeal court shall be appointed by the Judge Advocate General.
	(2) No person shall be appointed under this section unless he is qualified under section 84B(2) of this Act for appointment as the judge advocate in relation to a court-martial."

(2) After section 52FF of the 1957 Act there is inserted-

"Judge advocates.	52FG. - (1) Judge advocates in relation to the summary appeal court shall be appointed by the Chief Naval Judge Advocate.
	(2) No person shall be appointed under this section unless he is qualified under section 53B(2) of this Act for appointment as the judge advocate in relation to a court-martial."

Officers qualified for membership of summary appeal court.

16. - (1) After section 83ZB of the Army Act 1955 there is inserted-

"Officers qualified for membership of summary appeal court.	83ZC. - (1) Subject to subsections (2) and (3) below, an officer is qualified under this section for membership of the summary appeal court if he is a military officer who 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 periods amounting in the aggregate to not less than two years.
	(2) Subject to subsection (3) below, rules under section 83ZJ of this Act may specify circumstances in which any other military officer or a naval or air-force officer is qualified under this section for membership of the court.
	(3) The following are not qualified under this section for membership of the court-
	(a) the court administration officer,
	(b) an officer under the command of the court administration officer,
	(c) the prosecuting authority,
	(d) any person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990,
	(e) an advocate in Scotland or a solicitor who has a right of audience in the Court of Session or the High Court of Justiciary,
	(f) a member of the Bar of Northern Ireland,
	(g) a person who has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules, or
	(h) any person who is, or has at any time during the preceding five years been, a provost officer.
	(4) 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."

(2) After section 83ZB of the Air Force Act 1955 there is inserted-

"Officers qualified for membership of summary appeal court.	83ZC. - (1) Subject to subsections (2) and (3) below, an officer is qualified under this section for membership of the summary appeal court if he is an air-force officer who 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 periods amounting in the aggregate to not less than two years.
	(2) Subject to subsection (3) below, rules under section 83ZJ of this Act may specify circumstances in which any other air-force officer or a naval or military officer is qualified under this section for membership of the court.
	(3) The following are not qualified under this section for membership of the court-
	(a) the court administration officer,
	(b) an officer under the command of the court administration officer,
	(c) the prosecuting authority,
	(d) any person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990,
	(e) an advocate in Scotland or a solicitor who has a right of audience in the Court of Session or the High Court of Justiciary,
	(f) a member of the Bar of Northern Ireland,
	(g) a person who has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules, or
	(h) any person who is, or has at any time during the preceding five years been, a provost officer.
	(4) 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."

(3) After section 52FG of the 1957 Act there is inserted-

"Officers qualified for membership of summary appeal court.	52FH. - (1) Subject to subsections (2) and (3) below, an officer is qualified under this section for membership of the summary appeal court if he is a naval officer of or above the rank of lieutenant who 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 periods amounting in the aggregate to not less than three years.
	(2) Subject to subsection (3) below, rules under section 52FP of this Act may specify circumstances in which any other naval officer or a military or air-force officer is qualified under this section for membership of the court.
	(3) The following are not qualified under this section for membership of the court-
	(a) the court administration officer,
	(b) an officer under the command of the court administration officer,
	(c) the prosecuting authority,
	(d) any person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990,
	(e) an advocate in Scotland or a solicitor who has a right of audience in the Court of Session or the High Court of Justiciary,
	(f) a member of the Bar of Northern Ireland,
	(g) a person who has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules, or
	(h) any person who is, or has at any time during the preceding five years been, a member of the Royal Navy Regulating Branch.
	(4) 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."

Constitution of court for appeals.

17. - (1) After section 83ZC of each of the 1955 Acts there is inserted-

"Constitution of summary appeal court for appeals.	83ZD. - (1) For the purpose of hearing an appeal, the summary appeal court shall consist of-
	(a) one of the judge advocates appointed under section 83ZB, and
	(b) two officers qualified under section 83ZC for membership of the court.
	(2) Subsection (1) above has effect subject to any provision made by virtue of section 83ZJ of this Act.
	(3) The judge advocate for any appeal shall be specified by or on behalf of the Judge Advocate General.
	(4) The other members of the court for any appeal shall be specified by or on behalf of the court administration officer."

(2) After section 52FH of the 1957 Act there is inserted-

"Constitution of summary appeal court for appeals.	52FJ. - (1) For the purpose of hearing an appeal, the summary appeal court shall consist of-
	(a) one of the judge advocates appointed under section 52FG, and
	(b) two officers qualified under section 52FH for membership of the court.
	(2) Subsection (1) above has effect subject to any provision made by virtue of section 52FP of this Act.
	(3) The judge advocate for any appeal shall be specified by or on behalf of the Chief Naval Judge Advocate.
	(4) The other members of the court for any appeal shall be specified by or on behalf of the court administration officer.
	(5) In specifying members of the court under subsection (4) of this section the person doing so shall ensure that at least one member of the court for any appeal is of or above the rank of commander.
	(6) At any sitting of the court, the most senior member of the court at that sitting shall preside."

Prepared 16 March 2000