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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

 
 

 
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Revised 1 December 2005