Armed Forces Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 2 — Court Martial Proceedings
76

(3)
Where a defendant is arraigned in respect of more than one offence, the
reference in subsection (1)(a) to the date of commission of the offence there
mentioned is to the date of commission of the earliest such offence.
(4)
Court Martial rules may provide that an officer or warrant officer of a
description prescribed by the rules is ineligible for membership of the Court
5
Martial for a description of proceedings so prescribed.
Chapter 2
Court Martial Proceedings
157
Open court
Subject to any provision made by Court Martial rules, the Court Martial must
10
sit in open court.
158
Rulings and directions
(1)
In the case of proceedings where the Court Martial consists of a judge advocate
and one or more other persons, rulings and directions on questions of law,
procedure or practice are to be given by the judge advocate.
15
(2)
Any rulings or directions given under subsection (1) are binding on the court.
159
Decisions of Court Martial: finding and sentence
(1)
Subject to the following provisions of this section, the finding of the Court
Martial on a charge, and any sentence passed by it, must be determined by a
majority of the votes of the members of the court.
20
(2)
The judge advocate is not entitled to vote on the finding.
(3)
In the case of an equality of votes on the finding, the court must acquit the
defendant.
(4)
In the case of an equality of votes on the sentence, the judge advocate has a
casting vote.
25
160
Power of Court Martial to convict of offence other than that charged
(1)
Where the Court Martial acquits a person of an offence specifically charged in
the charge sheet, but the allegations in the charge sheet amount to or include
(expressly or by implication) an allegation of another service offence, the court
may convict him of that other offence.
30
(2)
For the purposes of subsection (1)—
(a)
an allegation of an offence to which section 39(1) applies (offence X)
shall be taken as including an allegation of an offence under that section
of attempting to commit offence X; and
(b)
an allegation of a completed section 42 offence shall be taken as
35
including an allegation of a section 42 offence of attempt.
(3)
Subsection (1) applies in relation to a charge sheet containing more than one
charge as if each charge were contained in a separate charge sheet.

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 2 — Court Martial Proceedings
77

(4)
In this section—
“a completed section 42 offence” means an offence that, by virtue of
section 1(4) of the Criminal Attempts Act 1981 (c. 47) as modified by
section 43 of this Act, is an offence to which section 1 of that Act applies;
“a section 42 offence of attempt” has the meaning given by section 44(2).
5
161
Privileges of witnesses and others
A witness before the Court Martial 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.
162
Court Martial rules
10
(1)
The Secretary of State may by rules (referred to in this Act as “Court Martial
rules”) make provision with respect to the Court Martial.
(2)
Court Martial 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;
15
(b)
trials 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 defendant;
(f)
appeals from the Service Civilian Court.
20
(3)
Without prejudice to the generality of subsections (1) and (2), Court Martial
rules may make provision—
(a)
as to oaths and affirmations for members of the court, witnesses and
other persons;
(b)
as to objections to, and the replacement of, members of the court;
25
(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;
(e)
for procuring the attendance of witnesses and other persons and the
production of documents and other things, including provision
30
about—
(i)
the payment of expenses to persons summoned to attend the
court;
(ii)
the issue by the court of warrants for the arrest of persons;
(f)
as to the amendment of charges;
35
(g)
for the taking into consideration, when sentencing an offender, of any
other service offence committed by him;
(h)
for the discharge of a court (including provision as to retrials and
rehearings following discharge);
(i)
for the powers conferred by section 7 of the Bankers’ Books Evidence
40
Act 1879 (c. 11) (orders for the inspection of bankers’ books for the
purposes of legal proceedings) to be exercisable by a judge advocate as
well as by the court or a judge within the meaning of that Act;
(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
45
fees payable for the supply of such copies;

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 3 — Punishments Available to Court Martial
78

(l)
conferring functions in relation to the court on the court administration
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
5
provision applying, with or without modifications, any enactment (whenever
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;
10
(b)
requiring any arrested person to be brought before the court;
(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).
15
(6)
Court Martial rules must secure that, after arraignment, charges may not be
amended—
(a)
in circumstances substantially different from those in which
indictments are amendable by the Crown Court; or
(b)
otherwise than subject to conditions which correspond, as nearly as
20
circumstances permit, to those subject to which indictments are so
amendable.
(7)
Court Martial rules may apply, with or without modifications, any enactment
or subordinate legislation (whenever passed or made), including any
provision made by or under this Act.
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Chapter 3
Punishments Available to Court Martial
163
Punishments available to Court Martial
(1)
The second column of the following Table lists the punishments that may be
awarded by sentence of the Court Martial, subject in the case of each
30
punishment to any limitation shown in the third column opposite it.

TABLE

Row
Punishment
Limitation

Number

1
imprisonment

35

2
dismissal with disgrace from

Her Majesty’s service

3
dismissal from Her Majesty’s

service

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 3 — Punishments Available to Court Martial
79

TABLE

Row
Punishment
Limitation

Number

4
detention for a term not
not if the person being sentenced is an

exceeding two years
officer

5

5
forfeiture of a specified term of
only if the person being sentenced is

seniority or of all seniority
an officer

6
reduction in rank, or disrating
only if the person being sentenced is a

warrant officer or non-commissioned

officer, and not to an extent prohibited

10

by regulations under subsection (4)

7
a fine

8
a service community order
only if the person being sentenced is

(defined by section 177)
on the same occasion sentenced to

dismissal or dismissal with disgrace

15

and subsection (5) permits

9
a severe reprimand or a
only if the person being sentenced is

reprimand
an officer, warrant officer or non-

commissioned officer

10
a service supervision and
only if the person being sentenced is

20

punishment order (defined by
an able rate, marine, soldier or airman

section 172)

11
such minor punishments as

may from time to time be

authorised by regulations

25

made by the Defence Council

12
a service compensation order

(defined by section 174)

(2)
Where this Act provides that a person guilty of a particular offence is liable to
any punishment mentioned in the Table or in specified rows of the Table, it
30
means he is liable to any one or more of the punishments so mentioned (subject
in the case of each one to any limitation shown in the third column opposite it).
(3)
The previous provisions of this section are subject to (in particular)—
section 164 (offender elected Court Martial trial);
Chapters 4 to 6 of Part 8 (imprisonment for under 12 months, young
35
offenders’ custodial sentences, and mandatory etc sentences for serious
offences); and
Part 9 (general provisions about sentencing).
(4)
The Defence Council may by regulations restrict the extent to which persons of
a description specified in the regulations may be reduced in rank or disrated
40
under this section.
(5)
The court may not make a service community order unless—

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity
80

(a)
the offender is aged 18 or over when convicted; and
(b)
it appears to the court that he will reside in the United Kingdom when
the order is in force.
(6)
Where regulations under row 11 of the Table authorise a minor punishment,
they may—
5
(a)
confer on the Court Martial a power, when awarding the punishment,
to direct that the punishment shall take effect from a date after the date
of the award;
(b)
confer on the offender’s commanding officer the function of deciding
the details of the punishment;
10
(c)
provide for the delegation by the commanding officer of any of his
functions under the regulations.
(7)
This section is modified in relation to certain offenders by Schedule 3 (civilians
etc).
164
Sentencing powers of Court Martial where election for trial by that court
15
instead of CO
(1)
This section applies where a person is convicted by the Court Martial of a
relevant offence.
(2)
For the purposes of subsection (1) an offence is “relevant” if the charge in
respect of it is—
20
(a)
a charge as regards which the person elected Court Martial trial under
section 128 (whether or not the charge was amended after election); or
(b)
a charge substituted for a charge within paragraph (a).
(3)
Where the person is convicted of a single relevant offence, the sentence passed
in respect of it must be such that the commanding officer could have awarded
25
the punishments awarded by that sentence if he had heard the charge
summarily and had recorded a finding that the charge had been proved.
(4)
Where the person is convicted of two or more relevant offences in the same
proceedings, the sentences passed in respect of them must be such that the
commanding officer could have awarded the punishments awarded by those
30
sentences if he had heard the charges, together, summarily and had recorded
findings that they had been proved.
(5)
References in subsections (3) and (4) to the commanding officer are to the
commanding officer who would have heard the charge or charges if no election
under section 128 had been made.
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Chapter 4
Findings of Unfitness to Stand Trial and Insanity
165
Fitness to stand trial
(1)
This section applies where on a trial by the Court Martial the question arises (at
the instance of the defence or otherwise) whether the defendant is fit to stand
40
trial.
(2)
For the purposes of this Act a person is unfit to stand trial if he is under a
disability such that apart from the Criminal Procedure (Insanity) Act 1964

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity
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(c. 84) it would constitute a bar to his being tried on indictment in England and
Wales.
(3)
Subject to subsections (5) and (6), the question of fitness to stand trial must be
determined as soon as it arises.
(4)
The question of fitness to stand trial is to be determined by the judge advocate.
5
(5)
If having regard to the nature of the supposed disability the judge advocate is
of the opinion that it is expedient to do so and in the interests of the defendant,
he may postpone consideration of the question of fitness to stand trial until any
time up to the opening of the case for the defence.
(6)
If before the question of fitness to stand trial falls to be determined the court
10
finds the defendant not guilty on the charge or each of the charges on which he
is being tried, that question shall not be determined.
(7)
A judge advocate may not make a determination under subsection (4) except
on the written or oral evidence of two or more registered medical practitioners
at least one of whom is duly approved within the meaning given by section
15
171.
166
Finding that defendant did the act or made the omission charged
(1)
This section applies where in accordance with section 165(4) it is determined
by the judge advocate that the defendant is unfit to stand trial.
(2)
The trial shall not proceed or further proceed but the court must, as respects
20
the charge or each of the charges on which the defendant was to be or was
being tried, determine whether it is satisfied that he did the act charged against
him as the offence.
(3)
If as respects that charge or any of those charges the court is so satisfied, it must
make a finding that the defendant did the act charged against him.
25
(4)
If as respects that charge or any of those charges the court is not so satisfied, it
must find the defendant not guilty as if on the charge in question the trial had
proceeded to a conclusion.
(5)
A determination under subsection (2) must be made—
(a)
on the evidence (if any) already given in the trial; and
30
(b)
on such evidence as may be adduced or further adduced by the
prosecution, or adduced by a person appointed under this section by
the judge advocate to put the case for the defence.
(6)
Section 159 (Court Martial decisions) does not apply to a determination or
finding under this section, but as respects any charge to which subsection (2)
35
above applies—
(a)
the question whether the court is satisfied as mentioned in that
subsection is to be determined by the members of the court other than
the judge advocate (“the lay members”); and
(b)
the court is so satisfied if, on a vote on the question whether they are so
40
satisfied, a majority of the lay members are in favour.
(7)
In this section “act” includes an omission and references to the doing of an act
are to be read accordingly.