Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 2 — Charging and Mode of Trial
59

121
Charges brought at direction of DSP
(1)
Where a direction under section 120(2) is given to an officer, he must bring the
charge or charges specified in the direction.
(2)
A charge brought as a result of such a direction—
(a)
is to be regarded for the purposes of this Part as allocated for Service
5
Civilian Court trial if the Director of Service Prosecutions allocated it
(under section 120(3)) for trial by that court;
(b)
otherwise, is to be regarded for the purposes of this Part as allocated for
Court Martial trial.
Powers of commanding officer or DSP after charge etc
10
122
Powers of CO after charge
(1)
This section applies where a charge against a person (“the accused”) is for the
time being regarded for the purposes of this Part as allocated for summary
hearing.
(2)
The accused’s commanding officer may—
15
(a)
amend the charge;
(b)
substitute for the charge another charge against the accused;
(c)
bring an additional charge against the accused;
(d)
discontinue proceedings on the charge;
(e)
refer the charge to the Director of Service Prosecutions.
20
(3)
The powers under subsection (2) may be exercised before or after the start of
any summary hearing of the charge.
(4)
Any amended, substituted or additional charge under subsection (2)(a) to (c)
must be capable of being heard summarily (see section 52).
(5)
Any additional charge brought under subsection (2)(c) must be in respect of the
25
case as respects which the charge mentioned in subsection (1) was brought.
(6)
Any amended, substituted or additional charge under subsection (2)(a) to (c) is
to be regarded for the purposes of this Part as allocated for summary hearing.
(7)
Where a charge is referred under subsection (2)(e) to the Director of Service
Prosecutions, the charge and any other charge brought in respect of the same
30
case are to be regarded for the purposes of this Part as allocated for Court
Martial trial.
123
CO to hear charge allocated for summary hearing
(1)
This section applies in respect of a charge which is regarded for the purposes
of this Part as allocated for summary hearing.
35
(2)
The accused’s commanding officer must hear the charge summarily unless—
(a)
he exercises his powers under section 122(2)(b), (d) or (e) in respect of
the charge (substitution of charge, discontinuance of proceedings, or
referral to DSP); or
(b)
the accused elects Court Martial trial of the charge (see section 128).
40

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 2 — Charging and Mode of Trial
60

(3)
Subsection (2) is subject to sections 52 (charges capable of being heard
summarily) and 54 (charges which may be heard summarily only with
permission or by senior officer).
124
Powers of DSP in respect of charge allocated for Court Martial trial
(1)
This section applies where a charge against a person (“the accused”) is for the
5
time being regarded for the purposes of this Part as allocated for Court Martial
trial.
(2)
The Director of Service Prosecutions may—
(a)
amend the charge;
(b)
substitute for the charge another charge against the accused;
10
(c)
bring an additional charge against the accused;
(d)
discontinue proceedings on the charge;
(e)
refer the charge to the accused’s commanding officer, but only if the
charge is capable of being heard summarily (see section 52);
(f)
allocate the charge for trial by the Service Civilian Court, but only if the
15
charge is one that that court has jurisdiction to try;
(g)
make a direction under section 126(1) or (2) (directions barring further
proceedings) in respect of the offence charged or any offence that could
be charged under paragraph (c) above.
(3)
Court Martial rules may restrict the exercise of powers under subsection (2)—
20
(a)
after arraignment by the Court Martial; or
(b)
after referral of the charge to the Court Martial under section 278(4) or
279(3) (referral by SCC).
(4)
Any additional charge brought under subsection (2)(c) must be in respect of the
case as respects which the charge mentioned in subsection (1) was brought.
25
(5)
Any amended, substituted or additional charge under subsection (2)(a) to (c) is
to be regarded for the purposes of this Part as allocated for Court Martial trial.
(6)
Any charge referred under subsection (2)(e) to a commanding officer is to be
regarded for the purposes of this Part as allocated for summary hearing.
(7)
Any charge allocated under subsection (2)(f) is to be regarded for the purposes
30
of this Part as allocated for Service Civilian Court trial.
125
Powers of DSP in respect of charge allocated for SCC trial
(1)
This section applies where a charge against a person (“the accused”) is for the
time being regarded for the purposes of this Part as allocated for Service
Civilian Court trial.
35
(2)
The Director of Service Prosecutions may—
(a)
amend the charge;
(b)
substitute for the charge another charge against the accused;
(c)
bring an additional charge against the accused;
(d)
discontinue proceedings on the charge;
40
(e)
allocate the charge for trial by the Court Martial;
(f)
make a direction under section 126(1) or (2) (directions barring further
proceedings) in respect of the offence charged or any offence that could
be charged under paragraph (c) above.

Armed Forces Bill
Part 5 — Investigation, Charging and Mode of Trial
Chapter 3 — Supplementary
61

(3)
SCC rules may restrict the exercise, after a decision by the Service Civilian
Court under section 278 as to whether it should try the charge, of powers under
subsection (2).
(4)
Any amended, substituted or additional charge under subsection (2)(a) to (c)
must be one that the Service Civilian Court has jurisdiction to try.
5
(5)
Any additional charge brought under subsection (2)(c) must be in respect of the
case as respects which the charge mentioned in subsection (1) was brought.
(6)
Any amended, substituted or additional charge under subsection (2)(a) to (c) is
to be regarded for the purposes of this Part as allocated for Service Civilian
Court trial.
10
(7)
Any charge allocated under subsection (2)(e) is to be regarded for the purposes
of this Part as allocated for Court Martial trial.
Chapter 3
Supplementary
126
Directions by DSP barring further proceedings
15
(1)
A direction under this subsection is a direction that for the purposes of section
63 the person specified in the direction is to be treated as acquitted of the
service offence so specified.
(2)
A direction under this subsection is a direction that for the purposes of sections
63 and 64 the person specified in the direction is to be treated as acquitted of
20
the service offence so specified.
127
Regulations for purposes of Part 5
(1)
The Secretary of State may by regulations make such provision as he considers
necessary or expedient for the purposes of any provision of this Part.
(2)
Regulations under this section may in particular make provision—
25
(a)
for the delegation by a commanding officer of any of his functions;
(b)
as to the bringing, amendment and substitution of charges;
(c)
as to the referral of cases and charges, including provision requiring a
commanding officer in prescribed circumstances to refer a case or
charge to the Director of Service Prosecutions;
30
(d)
as to the examination of witnesses for the purpose of obtaining
information of assistance to the Director of Service Prosecutions in
connection with his functions under Chapter 2;
(e)
requiring prescribed persons to be notified of prescribed matters.
(3)
In subsection (2) “prescribed” means prescribed by regulations under this
35
section.

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 1 — Summary Hearing
62

Part 6
Summary Hearing and Appeals and Review
Chapter 1
Summary Hearing
Right to elect Court Martial trial
5
128
Right to elect Court Martial trial
(1)
Before hearing a charge summarily the commanding officer must, in the way
specified by rules under section 152, give the accused the opportunity of
electing Court Martial trial of the charge.
(2)
If the accused elects Court Martial trial of the charge—
10
(a)
the commanding officer must refer the charge to the Director of Service
Prosecutions; and
(b)
the charge is to be regarded for the purposes of Part 5 as allocated for
Court Martial trial.
(3)
Where two or more charges against the accused have been brought in respect
15
of the same case, an election for Court Martial trial in respect of any of the
charges takes effect as an election in respect of all of them.
(4)
Where, after the start of a summary hearing—
(a)
a charge is amended under section 122(2)(a),
(b)
a charge is substituted for another charge under section 122(2)(b), or
20
(c)
an additional charge is brought under section 122(2)(c),

this section applies in relation to the amended, substituted or additional charge
as if the reference in subsection (1) to hearing a charge summarily were a
reference to proceeding with the hearing.
129
Further consequences of election for Court Martial trial
25
(1)
This section applies where the accused has elected Court Martial trial of a
charge.
(2)
The Director of Service Prosecutions (“the Director”) may not without the
written consent of the accused substitute under section 124(2)(b)—
(a)
a charge in respect of an offence that is not an offence that may be dealt
30
with at a summary hearing (within the meaning of section 53); or
(b)
a charge which section 54 would have prevented the accused’s
commanding officer from hearing summarily (if the election had not
been made, and the officer had made the substitution).
(3)
The Director may not without the written consent of the accused—
35
(a)
bring under section 124(2)(c) a charge in addition to the charge; or
(b)
under section 124(2)(e) refer the charge (whether or not amended by the
Director) or any substituted or additional charge to a commanding
officer.
(4)
Where a charge mentioned in subsection (3)(b) is referred under section
40
124(2)(e), the accused may not elect Court Martial trial of the charge (and

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 1 — Summary Hearing
63

accordingly section 128(1) does not apply in respect of the charge); but this
does not apply if the charge is amended after referral.
Summary hearing
130
Summary hearing
(1)
This section applies where a commanding officer hears a charge summarily.
5
(2)
The commanding officer may dismiss the charge at any stage of the hearing;
but this is subject to subsection (4) and to any provision of rules under section
152.
(3)
If the commanding officer determines that the charge has not been proved, he
must dismiss the charge.
10
(4)
If the commanding officer determines that the charge has been proved, he
must—
(a)
record a finding that the charge has been proved; and
(b)
award one or more of the punishments authorised by section 131.
(5)
Where the commanding officer records findings that two or more charges
15
against a person have been proved, the award he must make under subsection
(4) is a single award (consisting of one or more of those punishments) in respect
of the charges taken together.
(6)
Nothing in this section authorises a commanding officer to include in an award
two or more punishments within the same row of the Table in section 131,
20
except where those punishments are—
(a)
different minor punishments which regulations made under row 7 of
the Table permit to be awarded together; or
(b)
service compensation orders.
Punishments available to commanding officer
25
131
Punishments available to commanding officer
(1)
The second column of the following Table lists the punishments that may be
awarded by a commanding officer who has heard a charge summarily, subject
in the case of each punishment to any limitation shown in the third column
opposite it.
30

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 1 — Summary Hearing
64

TABLE

Row
Punishment
Limitation

Number

1
detention for a term not
only if the person being punished is of

exceeding the maximum
or below the rank of—

5

allowed by section 132
(a)
leading rate;

(b)
lance corporal or lance

bombardier;

(c)
corporal in any of Her

Majesty’s air forces

10

2
forfeiture of a specified term of
only if the person being punished is an

seniority or of all seniority
officer, and only in accordance with

section 133

3
reduction in rank, or disrating
only if the person being punished is a

warrant officer or non-commissioned

15

officer, only in accordance with section

134, and not to an extent prohibited by

regulations under section 134(4)

4
a fine not exceeding the

maximum amount allowed by

20

section 135

5
a severe reprimand or a
only if the person being punished is an

reprimand
officer, warrant officer or non-

commissioned officer

6
a service supervision and
only if the person being punished is an

25

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

section 172)

7
such minor punishments as

may from time to time be

authorised by regulations

30

made by the Defence Council

8
a service compensation order

(defined by section 174) of an

amount not exceeding the

maximum allowed by section

35

136

(2)
Subsection (1) is subject to (in particular)—
(a)
section 137 (prohibited combinations of punishments) and any
regulations made under that section;
(b)
Chapter 1 of Part 9 (general provisions about sentencing).
40
(3)
Where regulations under row 7 of the Table authorise a minor punishment,
they may—

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 1 — Summary Hearing
65

(a)
confer on the offender’s commanding officer 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;
5
(c)
provide for the delegation by the commanding officer of any of his
functions under the regulations.
132
Detention: limits on powers
(1)
The maximum term of detention that a commanding officer may award under
row 1 of the Table in section 131 to an able rate, marine, soldier or airman is—
10
(a)
90 days if the commanding officer has extended powers for the
purposes of this subsection;
(b)
otherwise, 28 days.
(2)
A commanding officer may not award detention under row 1 of the Table in
section 131 to a person of any of the following ranks—
15
(a)
leading rate,
(b)
lance corporal or lance bombardier,
(c)
corporal in any of Her Majesty’s air forces,
unless the commanding officer has extended powers for the purposes of this
subsection; and the maximum term of detention that a commanding officer
20
may (if he has those powers) award such a person is 90 days.
(3)
A commanding officer has extended powers for the purposes of subsection (1)
or (2) if he has, before the summary hearing of the charge or charges—
(a)
applied to higher authority for extended powers for the purposes of
that subsection; and
25
(b)
been notified by higher authority that his application has been granted.
(4)
A commanding officer also has extended powers for the purposes of
subsection (1) or (2) if he is of or above the rank of rear admiral, major-general
or air vice-marshal.
133
Forfeiture of seniority: requirement for approval
30
(1)
A commanding officer may not award forfeiture of seniority under row 2 of the
Table in section 131 unless he has extended powers for the purposes of this
section.
(2)
A commanding officer has extended powers for the purposes of this section if
he has, before the summary hearing of the charge or charges—
35
(a)
applied to higher authority for extended powers for the purposes of
this section; and
(b)
been notified by higher authority that his application has been granted.
(3)
A commanding officer also has extended powers for the purposes of this
section if he is of or above the rank of rear admiral, major-general or air vice-
40
marshal.