Armed Forces Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court
69

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
years; or
(b)
immediately before receiving his commission, he was a warrant officer
in any of those forces.
(3)
A warrant officer is not qualified for membership of the court if he is an acting
10
warrant officer.
(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;
(b)
the Isle of Man;
(c)
a Commonwealth country; or
(d)
a British overseas territory.
30
143
Officers and warrant officers ineligible for membership in particular
circumstances
(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
193;
(d)
he serves under the command of a person within paragraph (c);
45

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court
70

(e)
he serves under the command of the officer who conducted the
summary hearing; or
(f)
before the summary hearing, he conducted (whether alone or with
other persons) an inquiry into the subject matter of any finding against
the appellant.
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
(1)(b), (d), (e) or (f).
(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
Court.
144
Open court
15
Subject to any provision made by SAC rules, the Summary Appeal Court must
sit in open court.
145
Hearing of appeals
(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
punishment.
(2)
An appeal under section 140 against punishment is to be by way of a rehearing
as respects punishment.
(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
advocate.
(4)
Any rulings or directions given under subsection (3) are binding on the court.
146
Powers of the SAC
(1)
At a rehearing of a charge by virtue of section 145(1)(a), the Summary Appeal
30
Court may—
(a)
confirm or quash the finding concerned; or
(b)
substitute for the finding concerned a finding that another charge has
been proved.
(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
punishment which—

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court
71

(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
power).
(5)
In determining—
(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
the appellant served.
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
the direction;
20
(b)
otherwise, from the beginning of the day on which the punishment is
substituted.
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.
150
SAC rules
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
place of sitting;
40
(b)
the hearing of appeals and other proceedings of the court;
(c)
the practice and procedure of the court;

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court
72

(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
make provision—
(a)
as to oaths and affirmations for members of the court, witnesses and
5
other persons;
(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
about—
(i)
the payment of expenses to persons summoned to attend the
court;
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
following discharge);
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
officer;
(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)
includes provision—
(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
modifications).
(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.

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 3 — Review of Summary Findings and Punishments
73

Chapter 3
Review of Summary Findings and Punishments
151
Review of summary findings and punishments
(1)
Where—
(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
or punishment; and
(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
it as on an appeal.
(5)
Subsections (6) and (7) apply where—
20
(a)
a review has been carried out under this section in respect of a finding
or punishment; and
(b)
the person to whom the review relates has brought an appeal under
section 140.
(6)
If—
25
(a)
the Summary Appeal Court has not completed the hearing of the
appeal, and
(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
court,
30

he may notify the court of that matter.
(7)
If—
(a)
the Summary Appeal Court has completed the hearing of the appeal,
and
(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
punishment.

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 1 — The Court Martial
74

Chapter 4
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
mentioned in section 54;
(f)
requiring prescribed persons to be notified of prescribed matters.
15
(3)
In subsection (2) “prescribed” means prescribed by rules under this section.
Part 7
Trial by Court Martial
Chapter 1
The Court Martial
20
153
The Court Martial
(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
Kingdom.
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
Judge Advocate General.
35
(4)
The other members of the court for any proceedings are to be specified by or
on behalf of the court administration officer.

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 1 — The Court Martial
75

(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
years; or
(b)
immediately before receiving his commission, he was a warrant officer
in any of those forces.
10
(3)
A warrant officer is not qualified for membership of the court if he is an acting
warrant officer.
(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;
(b)
the Isle of Man;
(c)
a Commonwealth country; or
30
(d)
a British overseas territory.
156
Officers and warrant officers ineligible for membership in particular
circumstances
(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
(1)(b) or (c).
45