|
| |
|
142 | Officers and warrant officers qualified for membership of the SAC |
| |
(1) | Subject to subsections (2) to (4), an officer or warrant officer is qualified for |
| |
membership of the Summary Appeal Court if he is subject to service law. |
| |
(2) | An officer is not qualified for membership of the court unless— |
| |
(a) | he has held a commission in any of Her Majesty’s forces for at least |
| 5 |
three years, or for periods amounting in the aggregate to at least three |
| |
| |
(b) | immediately before receiving his commission, he was a warrant officer |
| |
| |
(3) | A warrant officer is not qualified for membership of the court if he is an acting |
| 10 |
| |
(4) | An officer or warrant officer is not qualified for membership of the court if— |
| |
(a) | he is a member of the Military Court Service; |
| |
(b) | he is a member of the Service Prosecuting Authority; |
| |
(c) | he is a service policeman; |
| 15 |
(d) | he is a member of the Royal Army Chaplains’ Department or the Royal |
| |
Air Force Chaplaincy Branch; |
| |
(e) | he has a general qualification within the meaning of section 71 of the |
| |
Courts and Legal Services Act 1990 (c. 41); |
| |
(f) | he is an advocate or solicitor in Scotland; |
| 20 |
(g) | he is a member of the Bar of Northern Ireland or a solicitor of the |
| |
Supreme Court of Northern Ireland; or |
| |
(h) | he has in a relevant territory 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. |
| 25 |
(5) | In this section “relevant territory” means— |
| |
(a) | any of the Channel Islands; |
| |
| |
(c) | a Commonwealth country; or |
| |
(d) | a British overseas territory. |
| 30 |
143 | Officers and warrant officers ineligible for membership in particular |
| |
| |
(1) | An officer is ineligible for membership of the Summary Appeal Court for the |
| |
hearing of an appeal under section 140 if— |
| |
(a) | he was the commanding officer of the appellant at any time in the |
| 35 |
period beginning with the date of commission of the offence which is |
| |
the subject of the finding against the appellant and ending with the |
| |
start of the appeal hearing; |
| |
(b) | before the summary hearing, he took part in investigating the subject |
| |
matter of any finding against the appellant; |
| 40 |
(c) | he is a higher authority who dealt with an application made before the |
| |
summary hearing for permission under section 54 or for extended |
| |
powers for the purposes of any provision of section 132, 133, 134, 135 or |
| |
| |
(d) | he serves under the command of a person within paragraph (c); |
| 45 |
|
| |
|
| |
|
(e) | he serves under the command of the officer who conducted the |
| |
| |
(f) | before the summary hearing, he conducted (whether alone or with |
| |
other persons) an inquiry into the subject matter of any finding against |
| |
| 5 |
(2) | A warrant officer is ineligible for membership of the Summary Appeal Court |
| |
for the hearing of an appeal under section 140 if he falls within subsection |
| |
| |
(3) | Where there is more than one finding against the appellant, the reference in |
| |
subsection (1)(a) to the date of commission of the offence there mentioned is to |
| 10 |
the date of commission of the earliest such offence. |
| |
(4) | SAC rules may provide that an officer or warrant officer of a description |
| |
prescribed by the rules is ineligible for membership of the Summary Appeal |
| |
| |
| 15 |
Subject to any provision made by SAC rules, the Summary Appeal Court must |
| |
| |
| |
(1) | An appeal under section 140 against a finding is to be by way of— |
| |
(a) | a rehearing of the charge; and |
| 20 |
(b) | except where section 146(2) applies, a rehearing as respects |
| |
| |
(2) | An appeal under section 140 against punishment is to be by way of a rehearing |
| |
| |
(3) | In the case of the hearing of an appeal under section 140, rulings and directions |
| 25 |
on questions of law, procedure or practice are to be given by the judge |
| |
| |
(4) | Any rulings or directions given under subsection (3) are binding on the court. |
| |
| |
(1) | At a rehearing of a charge by virtue of section 145(1)(a), the Summary Appeal |
| 30 |
| |
(a) | confirm or quash the finding concerned; or |
| |
(b) | substitute for the finding concerned a finding that another charge has |
| |
| |
(2) | Where the court quashes the finding, or (if there is more than one finding) |
| 35 |
every finding, made in respect of the appellant, it must quash the punishment |
| |
which relates to that finding or, as the case may be, to those findings. |
| |
(3) | At a rehearing as respects punishment by virtue of section 145(1)(b) or (2), the |
| |
Summary Appeal Court may— |
| |
(a) | confirm the punishment awarded; or |
| 40 |
(b) | quash that punishment and award in substitution for it any |
| |
| |
|
| |
|
| |
|
(i) | it would have been within the powers of the officer who |
| |
conducted the summary hearing to award; and |
| |
(ii) | in the opinion of the court, is no more severe than the |
| |
punishment originally awarded. |
| |
(4) | SAC rules may make provision in connection with the exercise of the power |
| 5 |
under subsection (1)(b) (including provision restricting the exercise of the |
| |
| |
| |
(a) | whether to substitute a term of detention, or |
| |
(b) | the length of any such substituted term, |
| 10 |
| the court must take account of any period of the original term of detention that |
| |
| |
147 | Effect of substituted punishment |
| |
(1) | Unless it otherwise directs, any punishment substituted by the Summary |
| |
Appeal Court has effect as if awarded on the day on which the original |
| 15 |
punishment was awarded, but this is subject to subsection (2). |
| |
(2) | Where the court substitutes a term of detention (other than a suspended |
| |
sentence of service detention), the substituted term takes effect— |
| |
(a) | if the court makes a direction under section 188(3), in accordance with |
| |
| 20 |
(b) | otherwise, from the beginning of the day on which the punishment is |
| |
| |
148 | Making of, and appeals from, decisions of the SAC |
| |
(1) | Subject to section 145(3), any decision of the Summary Appeal Court when |
| |
constituted as mentioned in section 141(1) must be determined by a majority of |
| 25 |
the votes of the members of the court. |
| |
(2) | The appellant or respondent may question any decision of the Summary |
| |
Appeal Court on the ground that it is wrong in law or is in excess of |
| |
jurisdiction, by applying to the Summary Appeal Court to have a case stated |
| |
for the opinion of the High Court in England and Wales. |
| 30 |
149 | Privileges of witnesses and others |
| |
A witness before the Summary Appeal Court or any other person whose duty |
| |
it is to attend the court is entitled to the same immunities and privileges as a |
| |
witness before the High Court in England and Wales. |
| |
| 35 |
(1) | The Secretary of State may by rules (referred to in this Act as “SAC rules”) |
| |
make provision with respect to the Summary Appeal Court. |
| |
(2) | SAC rules may in particular make provision with respect to— |
| |
(a) | sittings of the court, including the place of sitting and changes to the |
| |
| 40 |
(b) | the hearing of appeals and other proceedings of the court; |
| |
(c) | the practice and procedure of the court; |
| |
|
| |
|
| |
|
(d) | evidence, including the admissibility of evidence; |
| |
(e) | the representation of the appellant. |
| |
(3) | Without prejudice to the generality of subsections (1) and (2), SAC rules may |
| |
| |
(a) | as to oaths and affirmations for members of the court, witnesses and |
| 5 |
| |
(b) | as to objections to, and the replacement of, members of the court; |
| |
(c) | as to the constitution of the court; |
| |
(d) | for such powers of the court as may be prescribed by the rules to be |
| |
exercised by a judge advocate; |
| 10 |
(e) | for procuring the attendance of witnesses and other persons and the |
| |
production of documents and other things, including provision |
| |
| |
(i) | the payment of expenses to persons summoned to attend the |
| |
| 15 |
(ii) | the issue by the court of warrants for the arrest of persons; |
| |
(f) | enabling an uncontested appeal to be determined without a hearing; |
| |
(g) | as to the bringing or abandonment of appeals; |
| |
(h) | for the discharge of a court (including provision as to rehearings |
| |
| 20 |
(i) | as to notifications and references under section 151; |
| |
(j) | for the making and retention of records of the proceedings of the court; |
| |
(k) | for the supply of copies of such records, including provision about the |
| |
fees payable for the supply of such copies; |
| |
(l) | conferring functions in relation to the court on the court administration |
| 25 |
| |
(m) | for the delegation by the court administration officer of any of his |
| |
functions in relation to the court. |
| |
(4) | Provision that may be made by the rules by virtue of subsection (2)(d) includes |
| |
provision applying, with or without modifications, any enactment (whenever |
| 30 |
passed) creating an offence in respect of statements admitted in evidence. |
| |
(5) | Provision that may be made by the rules by virtue of subsection (3)(e)(ii) |
| |
| |
(a) | conferring powers of arrest; |
| |
(b) | requiring any arrested person to be brought before the court; |
| 35 |
(c) | authorising the keeping of persons in service custody, and the |
| |
imposition of requirements on release from service custody (including |
| |
provision applying section 107(5) and (6) with or without |
| |
| |
(6) | SAC rules may apply, with or without modifications, any enactment or |
| 40 |
subordinate legislation (whenever passed or made), including any provision |
| |
made by or under this Act. |
| |
(7) | In this section “appeal” means an appeal under section 140. |
| |
|
| |
|
| |
|
| |
Review of Summary Findings and Punishments |
| |
151 | Review of summary findings and punishments |
| |
| |
(a) | a charge has been heard summarily, and |
| 5 |
(b) | a finding that the charge has been proved has been recorded, |
| |
| the finding or the punishment awarded may be reviewed at any time. |
| |
(2) | A review under this section may be carried out by— |
| |
(a) | the Defence Council; or |
| |
(b) | any officer appointed by the Defence Council to carry out the review or |
| 10 |
any class of review which includes the review. |
| |
(3) | Subsection (4) applies where— |
| |
(a) | a review has been carried out under this section in respect of a finding |
| |
| |
(b) | the person to whom the review relates has not brought an appeal under |
| 15 |
section 140 within the period provided by subsection (2) of that section. |
| |
(4) | The person who carried out the review may, with the leave of the Summary |
| |
Appeal Court, refer the finding or punishment to the court to be considered by |
| |
| |
(5) | Subsections (6) and (7) apply where— |
| 20 |
(a) | a review has been carried out under this section in respect of a finding |
| |
| |
(b) | the person to whom the review relates has brought an appeal under |
| |
| |
| 25 |
(a) | the Summary Appeal Court has not completed the hearing of the |
| |
| |
(b) | the person who carried out the review considers that any matter arising |
| |
at or from the summary hearing should be brought to the notice of the |
| |
| 30 |
| he may notify the court of that matter. |
| |
| |
(a) | the Summary Appeal Court has completed the hearing of the appeal, |
| |
| |
(b) | the person who carried out the review considers that any matter arising |
| 35 |
at or from the summary hearing of which the court was not aware |
| |
should have been brought to the notice of the court, |
| |
| he may, with the leave of the court, refer the finding or punishment, including |
| |
any finding or punishment substituted or awarded by the court, to the court to |
| |
be considered by it as on an appeal. |
| 40 |
(8) | A reference to the Summary Appeal Court under subsection (4) or (7) shall be |
| |
treated for the purposes of this Act as an appeal under section 140 brought by |
| |
the person to whom the finding or punishment relates against the finding or |
| |
| |
|
| |
|
| |
|
| |
Summary Hearings etc Rules |
| |
152 | Summary hearings etc rules |
| |
(1) | The Secretary of State may by rules make provision with respect to— |
| |
(a) | the summary hearing of charges by commanding officers; |
| 5 |
(b) | hearings as regards the making of orders under section 192 (activation |
| |
of suspended sentence of service detention). |
| |
(2) | Rules under this section may in particular make provision— |
| |
(a) | as to the practice and procedure to be followed at hearings; |
| |
(b) | as to evidence at hearings; |
| 10 |
(c) | for the delegation by a commanding officer of any of his functions; |
| |
(d) | as to applications for extended powers; |
| |
(e) | as to applications for permission to hear summarily charges of a kind |
| |
| |
(f) | requiring prescribed persons to be notified of prescribed matters. |
| 15 |
(3) | In subsection (2) “prescribed” means prescribed by rules under this section. |
| |
| |
| |
| |
| 20 |
| |
(1) | There shall be a court, to be known as the Court Martial. |
| |
(2) | The Court Martial may sit in any place, whether within or outside the United |
| |
| |
154 | Constitution of the Court Martial |
| 25 |
(1) | In the case of any proceedings, the Court Martial is to consist of— |
| |
(a) | a judge advocate; and |
| |
(b) | a prescribed number of other persons of whom— |
| |
(i) | a prescribed number must be officers or warrant officers |
| |
qualified for membership under section 155 and not ineligible |
| 30 |
by virtue of section 156; and |
| |
(ii) | the rest must be officers so qualified and not so ineligible. |
| |
(2) | Subsection (1) is subject to any provision made by Court Martial rules. |
| |
(3) | The judge advocate for any proceedings is to be specified by or on behalf of the |
| |
| 35 |
(4) | The other members of the court for any proceedings are to be specified by or |
| |
on behalf of the court administration officer. |
| |
|
| |
|
| |
|
(5) | In this section “prescribed” means prescribed by Court Martial rules. |
| |
155 | Officers and warrant officers qualified for membership of the Court Martial |
| |
(1) | Subject to subsections (2) to (4), an officer or warrant officer is qualified for |
| |
membership of the Court Martial if he is subject to service law. |
| |
(2) | An officer is not qualified for membership of the court unless— |
| 5 |
(a) | he has held a commission in any of Her Majesty’s forces for at least |
| |
three years, or for periods amounting in the aggregate to at least three |
| |
| |
(b) | immediately before receiving his commission, he was a warrant officer |
| |
| 10 |
(3) | A warrant officer is not qualified for membership of the court if he is an acting |
| |
| |
(4) | An officer or warrant officer is not qualified for membership of the court if— |
| |
(a) | he is a member of the Military Court Service; |
| |
(b) | he is a member of the Service Prosecuting Authority; |
| 15 |
(c) | he is a service policeman; |
| |
(d) | he is a member of the Royal Army Chaplains’ Department or the Royal |
| |
Air Force Chaplaincy Branch; |
| |
(e) | he has a general qualification within the meaning of section 71 of the |
| |
Courts and Legal Services Act 1990 (c. 41); |
| 20 |
(f) | he is an advocate or solicitor in Scotland; |
| |
(g) | he is a member of the Bar of Northern Ireland or a solicitor of the |
| |
Supreme Court of Northern Ireland; or |
| |
(h) | he has in a relevant territory rights and duties similar to those of a |
| |
barrister or solicitor in England and Wales, and is subject to |
| 25 |
punishment or disability for breach of professional rules. |
| |
(5) | In this section “relevant territory” means— |
| |
(a) | any of the Channel Islands; |
| |
| |
(c) | a Commonwealth country; or |
| 30 |
(d) | a British overseas territory. |
| |
156 | Officers and warrant officers ineligible for membership in particular |
| |
| |
(1) | An officer is ineligible for membership of the Court Martial for proceedings |
| |
after the arraignment of a defendant if— |
| 35 |
(a) | he was the commanding officer of the defendant at any time in the |
| |
period beginning with the date of commission of the offence to which |
| |
the arraignment relates and ending with the arraignment; |
| |
(b) | he has taken part in investigating the subject matter of any charge |
| |
against the defendant; or |
| 40 |
(c) | he has conducted (whether alone or with other persons) an inquiry into |
| |
the subject matter of any charge against the defendant. |
| |
(2) | A warrant officer is ineligible for membership of the Court Martial for |
| |
proceedings after the arraignment of a defendant if he falls within subsection |
| |
| 45 |
|
| |
|