House of Commons - Explanatory Note
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Clause 133: Forfeiture of seniority: requirement for approval

347.     This clause requires a CO to have extended powers before awarding forfeiture of seniority.

348.     Subsection (2) gives a CO extended powers where he has applied for them and had them granted by higher authority. COs of 2* rank have inherent extended powers.

Clause 134: Reduction in rank: limits on powers

349.     This clause deals with COs' powers to disrate naval ratings and reduce army and RAF non-commissioned servicemen in rank. A CO requires extended powers to reduce in rank, save where he proposes to disrate a lance corporal or lance bombardier.

350.      Subsection (2) allows a CO to remove the acting rank of a non-commissioned service person that holds such a rank or one substantive rank from any other non-commissioned serviceman.

351.     Subsection (3) makes particular provision in respect of airmen. The term "airman" covers four ranks: aircraftman, leading aircraftman, senior aircraftman and junior technician. Whilst these four ranks do form a hierarchy, for some branches of the RAF a junior technician might be the lowest trained rank for his specialisation. A CO is not able to reduce a person in rank within the category of airman, so, for example, a junior technician may not be reduced to a senior aircraftman. For an RAF corporal any reduction in rank would be to the next highest rank applicable to his trade, and for which he is qualified, but still within the "catch all" category of airman.

352.     Subsection (4) allows the Defence Council to make regulations restricting the power to disrate or reduce in rank certain persons whose branch or trade requires them to hold a minimum rank.

353.     Subsection (5) gives a CO extended powers where he has applied for them and had them granted by higher authority.

354.     Under subsection (6) COs of 2* rank have inherent extended powers.

Clause 135: Fine: maximum amount

355.     This clause deals with a CO's powers to fine.

356.     Subsection (1) allows him to fine, without extended powers, an officer or warrant officer 14 days' pay and any other person 28 days' pay. With extended powers he can fine an officer or warrant officer up to 28 days' pay.

357.     Subsection (2) gives a CO extended powers where he has applied for them and had them granted by higher authority. COs of 2* rank have inherent extended powers.

358.     Subsections (4) and (5) deal with the calculation of a day's pay.

Clause 136: Service compensation orders: maximum amount

359.     This clause sets out the maximum amount for a service compensation order (or a combination of them) awardable by a CO, and also provides that the Secretary of State may substitute for the sum specified in the clause another appropriate sum.

Clause 137: Prohibited combinations of punishments

360.     This clause prohibits the award of certain punishments in combination with each other. Subsection (7) allows regulations about minor punishments to make provision for corresponding purposes.

Clause 138: Savings for maximum penalties for offences

361.     This clause places restrictions on the punishments which can be awarded by a CO when he is hearing a criminal conduct charge either alone or in combination with a non-criminal conduct offence. Where a CO is hearing a criminal conduct charge on its own, he may only award detention if the Court Martial would be able to do so for that offence and any fine must not exceed that which the Court Martial could have awarded for that offence.

362.      Subsection (2) applies where the CO makes an award of punishment relating to more than one offence. It prevents the CO awarding detention unless the Court Martial could have done so for at least one of the offences and, where the offences are criminal conduct offences, it prevents the CO from awarding a fine greater than the total of the fines that the Court Martial could have awarded under clause 42.

Chapter 2 - The Summary Appeal Court

363.     The Bill creates the Summary Appeal Court for the Armed Services and will replace the single service Summary Appeal Courts that were incorporated into the SDAs by the Armed Forces Discipline Act 2000. The tri-service Summary Appeal Court will operate in a similar manner to the single service Summary Appeal Courts.

364.     The Summary Appeal Court is a standing court which means the court will exist continuously may consider more than one case at any one time and may sit in more than one place at any one time. Membership will comprise of a judge advocate and two persons subject to service law, one of whom must be an officer and the other of whom may be a warrant officer. Some officers and warrant officers may not serve as members of the Court notably lawyers and service policemen; this is in order to prevent any actual or perceived bias that could arise if a person connected with the service disciplinary process were appointed as a member.

365.     A judge advocate presides at sittings of the Summary Appeal Court. The Summary Appeal Court hears appeals against findings made and punishments awarded at summary hearings. There is a universal right to appeal to the Summary Appeal Court which supplements an accused person's right to elect trial by court martial before the start of a summary hearing. It is intended that this offers those who have been dealt with summarily the opportunity to appeal to a court that is compliant with the European Convention on Human Rights.

366.     An appeal against a finding takes the form of a re-hearing and is conducted in a similar manner as an appeal that is made to the Crown Court from a decision in the magistrates' court. The respondent (that is the other party to the appeal) is the DSP. Consequently, the rules of evidence, with appropriate modifications, mirror those in the civilian system. Where the appeal relates to punishment alone and where there is no material dispute as to the facts, the court hears only a statement of the facts followed by a plea of mitigation.

Clause 139: The Summary Appeal Court

367.     This clause establishes the Summary Appeal Court and specifies that it may sit anywhere within or outside the United Kingdom.

Clause 140: Right of appeal

368.     This clause provides that anyone who has had a charge against him proven at a summary hearing can appeal to the Summary Appeal Court. The appeal can be in respect of the finding or the punishment. The clause imposes an initial 14-day time limit for bringing an appeal, starting from the day on which the punishment is awarded. The Court may extend this time limit if an application to extend it is made within the initial fourteen days. The Court may also give permission to appeal to the Summary Appeal Court at any time after the 14-day time limit has expired.

Clause 141: Constitution of the SAC for appeals

369.     This clause provides that a Summary Appeal Court will be made up of a judge advocate and two other members. The second member must be a commissioned officer but the third member can be either a warrant officer or a commissioned officer. The second and third members must be qualified and eligible to sit as a member of the Court in accordance with clauses 142 and 143.

370.     The judge advocate hearing the appeal will be specified for the hearing by or on behalf of the Judge Advocate General and the other two members will be selected by the court administration officer.

Clause 142: Officers and warrant officers qualified for membership of the SAC

371.     This clause provides that, subject to certain exceptions, an officer is qualified to act as a member if he has held a commission in HM forces for at least 3 years (or for periods amounting in total to 3 years) or he was a warrant officer in HM forces immediately before receiving his commission. A warrant officer in HM forces is not qualified to act if he is an acting warrant officer.

372.     Subsection (3) lists the categories of officers and warrant officers who may not serve as a member of the Summary Appeal Court and includes those who are legally qualified.

Clause 143: Officers and warrant officers ineligible for membership in particular circumstances

373.     This clause sets out the categories of officers and warrant officers who, by virtue of any involvement in the case which is the subject of the appeal or any command relationship with the accused person, may not be members of the court for a particular appeal.

Clause 145: Hearing of appeals

374.     This clause determines the form of the hearing depending on whether the appeal is against both the CO's finding and punishment or just the punishment.

375.     An appeal against finding will be a complete rehearing of the charge as such all the evidence in the case will be heard again. If the court does not quash the finding (or every finding in a case where there is more than one finding being appealed against) the court will go on to rehear the evidence relevant to punishment.

376.     Appeals against sentence alone will be by way of a rehearing but the court will only hear evidence relevant to punishment.

377.     Questions of law, procedure and practice will be decided by the judge advocate and will be binding on the court.

Clause 146: Powers of the SAC

378.     At an appeal against the finding of a CO, the Summary Appeal Court, can confirm the finding, quash it or substitute it with a finding that another charge has been proved. Where the Court quashes the finding, it must also quash the accompanying punishment. SAC rules may set down the circumstances in which a Court may substitute a finding that another charge is proved.

379.     After rehearing the evidence in respect of punishment, the Court can confirm the punishment or quash it and substitute another punishment. A court cannot substitute a punishment unless the substituted punishment could have been awarded by the CO who awarded the original punishment at the summary hearing and the court considers that it is no more severe than the original punishment.

Clause 148: Making of, and appeals from, decisions of the SAC

380.     This clause provides for decisions of the Summary Appeal Court to be made on the basis of a majority of the votes of the members of the court. An appellant or a respondent may apply to the High Court to have a case stated to challenge a decision of the Summary Appeal Court on the ground that it is wrong in law or in excess of its jurisdiction. Under the previous SDAs, such an application could only be made by an appellant.

Clause 149: Privileges of witnesses and others

381.     This clause provides that a witness (or anyone else who has a duty to attend the Summary Appeal Court) will have the same immunities and privileges as he would have had if called before the High Court in England and Wales.

Clause 150: SAC rules

382.     This clause provides that the Secretary of State may make rules to regulate the practice and procedure of the Summary Appeal Court and may also apply any domestic legislation, with or without modification.

Chapter 3 - Review of Summary Findings and Punishments

Clause 151: Review of summary findings and punishments

383.     This clause provides that a finding or a punishment awarded at a summary hearing can be reviewed at any time. The review can be carried out by the Defence Council or by any officer appointed by it. The action that can be taken by a reviewing authority will depend on whether the person who was dealt with summarily has lodged an appeal with the Summary Appeal court and if so whether the appeal has been heard.

384.     Under subsections (3) and (4), after a review has been carried out, the reviewing authority can, with the Summary Appeal Court's permission, refer a finding or punishment to the court for consideration by it as on appeal. This may only be done if the person to whom the finding or punishment has been awarded has not lodged an appeal within the time limits set out in clause 140(2).

385.     Subsection (6) provides that where the person to whom the finding or punishment has been awarded has appealed to the Summary Appeal Court and the hearing has not been completed, the reviewing authority may notify the court of any matter arising from the summary hearing which he considers should be brought to the notice of the court.

386.     Subsection (7) provides that where the person to whom the finding or punishment has been awarded has appealed to the Summary Appeal Court and the court hearing has been completed, the reviewing authority may with the court's permission refer the finding or punishment to the court to be considered by it as on appeal. This may happen if the reviewing authority considers that the court should be aware of a matter arising from the summary hearing. It may happen even if the court substituted a different finding or punishment when the appeal was heard.

387.     Subsection (8) provides that where the reviewing authority refers a matter to the Summary Appeal Court for consideration under subsection (4) or (7), the matter will be treated as if it had been brought by the person to whom the finding or punishment relates. This means that the person and not the reviewing authority will be the appellant.

Chapter 4 - Summary Hearings etc Rules

Clause 152: Summary hearings etc rules

388.     This clause provides that the Secretary of State may make regulations with respect to the summary hearing of charges by COs and hearings as regards the making of orders activating suspended sentences of service detention passed on an offender by a CO.

389.     Subsection (2) sets out the main provisions that may be made by regulations with respect to summary hearings, such as the practice and procedure to be followed at such hearings.

PART 7- TRIAL BY COURT MARTIAL

Chapter 1 - The Court Martial

Clause 153: The Court Martial

390.     This clause establishes the Court Martial as a standing court (as opposed to a court which is convened on an ad hoc basis) which may sit anywhere within or outside the United Kingdom.

Clause 154: Constitution of the Court Martial

391.     This clause provides for the membership of the Court Martial and identifies those responsible for specifying the judge advocate, senior lay member, and other members for any proceedings.

Clause 155: Officers and warrant officers qualified for membership of the Court Martial

392.     This clause provides that officers and warrant officers may be members of the Court Martial.

393.     Subsection (2) specifies the qualifying experience for officers.

394.     Subsections (3) and (4) specify the criteria which disqualify an officer or warrant officer from being appointed as a member of the Court Martial.

Clause 156: Officers and warrant officers ineligible for membership in particular circumstances

395.     This clause provides the circumstances in which officers and warrant officers who are otherwise qualified are ineligible for membership of the Court Martial for a particular trial.

Chapter 2 - Court Martial Proceedings

Clause 157: Open court

396.     This clause provides that the Court Martial must sit in open court, subject to any provision made by Court Martial Rules.

Clause 158: Rulings and directions

397.     This clause specifies the circumstances in which rulings and directions are to be given by the judge advocate.

398.     Subsection (2) provides that such rulings or directions given by the judge advocate are binding on the court.

Clause 159: Decisions of Court Martial findings and sentence

399.     This clause provides that the finding of the Court Martial on a charge and any sentence passed by it must be determined by a majority of the members of the court. It further provides that the judge advocate is not entitled to vote on the finding.

400.     Subsection (3) provides that if there is an equal vote on finding, the person must be acquitted.

401.     Subsection (4) provides that if there is an equal vote on sentence, the judge advocate has a second and casting vote.

Clause 160: Power of Court Martial to convict of offence other than that charged

402.     This clause provides that when the Court Martial finds a person not guilty of an offence but the allegations on the charge sheet amount to allegations of another service offence, including an attempted offence, the court may convict him of that offence.

Clause 161: Privileges of witnesses and others

403.     This clause provides that a witness before the Court Martial is entitled to the same immunities and privileges as a witness before the High Court in England and Wales.

Clause 162: Court Martial rules

404.     This clause provides a power for the Secretary of State to make rules with respect to the Court Martial. These rules may govern the administration, conduct and procedure of the Court Martial and may also create offences in respect of certain evidence provisions (subsection (4)) and provide for powers of arrest in relation to witness summonses (subsection (5)). Subsection (7) provides that the rules may apply any enactment or subordinate legislation whenever passed or made, with or without modifications.

Chapter 3 - Punishments available to Court Martial

Clause 163: Punishments available to Court Martial

405.     The Table in subsection (1) specifies the punishments that may be awarded by the Court Martial by way of sentence where the offender is a serviceman, subject to certain limitations related to the rank of the person being sentenced (and, in the case of the service community order, whether he is sentenced to dismissal at the same time).

406.     Subsection (2) provides for the interpretation of references elsewhere in the Bill to the Table in subsection (1). Where the Bill provides that a person guilty of a particular offence is liable to any punishment mentioned in the Table, the Court Martial can award any one or more of the punishments listed in the Table (subject to any limitations on particular punishments). Where the Bill provides that a person guilty of a particular offence is liable to any punishment mentioned in particular rows of the Table, the Court Martial can award any one or more of the punishments listed in those rows (subject to any limitations on particular punishments).

407.     Subsection (3) provides that subsections (1) and (2) are subject to certain other provisions of the Act which impose further restrictions on the court's freedom to select punishments from the Table.

408.     Subsection (4) permits the Defence Council to make regulations to provide that specified persons may not be reduced or disrated below a particular rank or rate.

409.     Subsection (5) sets out the circumstances in which a service community order may be made.

410.     Subsection (6) permits the Defence Council to make regulations in respect of minor punishments. The regulations may include provision for the delegation of the CO's functions.

411.     Subsection (7) provides for the modification of this clause by Schedule 3. That Schedule provides an alternative range of punishments for civilians subject to service discipline, and another for persons previously subject to service law.

Clause 164: Sentencing powers of Court Martial where election for trial by that court instead of CO

412.     This clause limits the Court Martial, where it tries a person as the result of his electing to be tried by that court, to the maximum punishment that the CO could have awarded if he had dealt with the person summarily. Where the Court Martial convicts such a person of two or more offences as a result of his electing Court Martial trial on any of them, the punishments it awards for both or all of them, taken together, must not exceed the maximum that the CO could have awarded if he had heard them summarily.

Chapter 4 - Findings of Unfitness to Stand Trial and Insanity

Introduction

413.     Clauses 165 to 171 enable the Court Martial to consider and determine issues of unfitness to stand trial and insanity and make appropriate orders in relation to persons who are unfit to stand trial or not guilty by reason of insanity, analogous to the Criminal Procedure (Insanity) Act 1964 (c.84), as amended by the Domestic Violence, Crime and Victims Act 2004 (c.28).

Clause 165: Fitness to stand trial

414.     This clause provides that on a trial by Court Martial the judge advocate presiding over the trial must, generally, determine a person's fitness to stand trial as soon as the issue arises. The other members of the court have no role in determining a person's fitness for trial. For the purposes of the Bill, a person is unfit to stand trial if he is suffering from a disability which, for example, would prevent him from instructing a legal adviser, pleading or understanding the evidence and would preclude him being tried on indictment in England and Wales except that the Criminal Procedure (Insanity) Act 1964 (c.84) makes special provision for such persons to be tried.

415.     A judge advocate may only determine whether a defendant is fit to stand trial after having considered the written or oral evidence of two or more registered medical practitioners at least one of whom must be duly approved for the purposes of section 12 of the Mental Health Act 1983 (the 1983 Act). However, if the judge advocate is of the view that it is in the interests of the defendant to delay the determination of the question as to whether he is unfit to stand trial he may do so until any time before the opening of the defendant's case and if the court finds the defendant not guilty of the charge, or charges, there is no requirement to determine the issue of fitness to stand trial.

Clause 166: Finding that defendant did the act or made the omission charged

416.     This clause provides that where a judge advocate has determined that a person is unfit to stand trial the trial will not proceed further but the court must determine, whether the person did the act, or omission, which constitutes the offence with which he is charged. If the court determines that he did the act or omission it must make a

finding that he did the act or omission in respect of that charge and if it determines that he did not do the act or omission, it must find him not guilty of that charge.

417.      Clause 159 (Court Martial decisions) does not apply to a determination or finding under this clause although where a court is required to decide whether a defendant did the act or omission charged only the lay members may take part in that determination and the decision is made by the majority of the lay members voting in favour of either of the two possible conclusions.

Clause 167: Findings of insanity

418.     This clause enables the lay members of the Court Martial to determine, on the basis of a simple majority, whether a defendant did the act or omission charged against him as an offence, and whether at the time he did the act or omission he was insane. If the court determines that he was insane at the time of the act or omission it must find the defendant not guilty by reason of insanity. Before making a determination under this clause the court must consider the evidence of at least two medical practitioners (at least one of whom being duly approved for the purposes of section 12 of the 1983 Act).

Clause 168: Powers where person unfit to stand trial or not guilty by reason of insanity

419.     This clause provides a range of disposals when there is a finding of unfitness to stand trial or not guilty by reason of insanity. The powers under this section can only be exercised by a judge advocate, the lay members having no role.

420.     Subsection (2) sets out the court's options on a finding of unfitness or insanity. The first option is to make a hospital order under s 37 of the 1983 Act, and this can also be accompanied by a restriction order. The second option is to make a service supervision order (defined by clause 169), which is analogous to a supervision order under the Criminal Procedure (Insanity) Act 1964 Schedule 1A, and the third option is to order the person's absolute discharge.

421.     Subsection (3) provides that a hospital order means an order under section 37 of the 1983 Act and a restriction order means an order under section 41 of that Act, both as modified by Schedule 4 of the Bill. The criteria for imposing a hospital order, with or without a restriction order, are those in the 1983 Act.

 
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Prepared: 6 December 2005