|
| |
|
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 |
| |
| |
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 |
| |
| |
(2) | The accused’s commanding officer may— |
| 15 |
| |
(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 |
| |
| |
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 |
| |
| |
(b) | the accused elects Court Martial trial of the charge (see section 128). |
| 40 |
|
| |
|
| |
|
(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 |
| |
| |
(2) | The Director of Service Prosecutions may— |
| |
| |
(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 |
| |
| 35 |
(2) | The Director of Service Prosecutions may— |
| |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| 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. |
| |
| |
| |
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 |
| |
|
| |
|
| |
|
| |
Summary Hearing and Appeals and Review |
| |
| |
| |
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 |
| |
| |
(b) | the charge is to be regarded for the purposes of Part 5 as allocated for |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
|
| |
|
| |
|
accordingly section 128(1) does not apply in respect of the charge); but this |
| |
does not apply if the charge is amended after referral. |
| |
| |
| |
(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 |
| |
| |
(3) | If the commanding officer determines that the charge has not been proved, he |
| |
| 10 |
(4) | If the commanding officer determines that the charge has been proved, he |
| |
| |
(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 |
| |
| 30 |
|
| |
|
| |
|
| | | | | | | | | | | | | | | | | | | only if the person being punished is of |
| | | | | | | | 5 | | | | | | | | | | (b) | lance corporal or lance |
| | | | | | | | | | | | (c) | corporal in any of Her |
| | | | | | | | 10 | | | 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 |
| | | | | | | | | | | 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) |
| | | | | | | | | | | maximum amount allowed by |
| | | 20 | | | | | | | | | | only if the person being punished is an |
| | | | | | officer, warrant officer or non- |
| | | | | | | | | | | a service supervision and |
| only if the person being punished is an |
| | 25 | | | punishment order (defined by |
| able rate, marine, soldier or airman |
| | | | | | | | | | | such minor punishments as |
| | | | | | | | | | | | authorised by regulations |
| | | 30 | | | made by the Defence Council |
| | | | | | a service compensation order |
| | | | | | (defined by section 174) of an |
| | | | | | | | | | | | maximum allowed by section |
| | | 35 | | | | | | |
|
(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, |
| |
| |
|
| |
|
| |
|
(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; |
| |
| |
(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 |
| |
(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 |
| |
| 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 |
| |
| |
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 |
| |
| |
(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 |
| |
| |
(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 |
| |
|
| |
|