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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).

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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;

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(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.

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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.

 
 

 
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