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Armed Forces Bill


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

66

 

134     

Reduction in rank: limits on powers

(1)   

A commanding officer may not award reduction in rank, or disrating, under

row 3 of the Table in section 131 unless—

(a)   

he has extended powers for the purposes of this subsection; or

(b)   

the person being punished is a lance corporal or lance bombardier.

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(2)   

The reduction in rank or disrating that a commanding officer may award is

reduction or disrating—

(a)   

by one acting rank or rate; or

(b)   

if the person being punished has no acting rank or rate, by one

substantive rank or rate.

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(3)   

Where the person being punished is a corporal in any of Her Majesty’s air

forces, the reduction in rank authorised by subsection (2)(a) (if he is an acting

corporal) or (2)(b) (if he is not) is reduction to the highest rank he has held in

that force as an airman.

(4)   

The Defence Council may by regulations provide that persons of a trade or

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branch specified in the regulations may not be reduced or disrated under

section 131 below a rank or rate so specified.

(5)   

A commanding officer has extended powers for the purposes of subsection (1)

if he has, before the summary hearing of the charge or charges—

(a)   

applied to higher authority for extended powers for the purposes of

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that subsection; and

(b)   

been notified by higher authority that his application has been granted.

(6)   

A commanding officer also has extended powers for the purposes of

subsection (1) if he is of or above the rank of rear admiral, major-general or air

vice-marshal.

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135     

Fine: maximum amount

(1)   

The maximum amount of a fine that a commanding officer may award is—

(a)   

28 days’ pay unless paragraph (b) applies;

(b)   

if the person being punished is an officer or warrant officer and the

commanding officer does not have extended powers for the purposes

30

of this paragraph, 14 days’ pay.

(2)   

A commanding officer has extended powers for the purposes of paragraph (b)

of subsection (1) if he has, before the summary hearing of the charge or

charges—

(a)   

applied to higher authority for extended powers for the purposes of

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that paragraph; 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 that

paragraph if he is of or above the rank of rear admiral, major-general or air

vice-marshal.

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(4)   

For the purposes of this section a day’s pay is—

(a)   

subject to paragraph (b), the gross pay which is (or would apart from

any forfeiture be) issuable to the offender in respect of the day when the

punishment is awarded;

 
 

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

67

 

(b)   

if the offender is a special member of a reserve force, the gross pay

which would have been issuable to him in respect of that day if he had

been an ordinary member of that reserve force of the same rank or rate.

(5)   

If the offender is a member of a reserve force who is not on duty on the day the

punishment is awarded, for the purposes of subsection (4) he is to be taken to

5

have been on duty then.

(6)   

In subsection (4) “special member” and “ordinary member” have the same

meanings as in the Reserve Forces Act 1996 (c. 14).

136     

Service compensation orders: maximum amount

(1)   

Where an award by a commanding officer consists of or includes one service

10

compensation order, the compensation to be paid under the order must not

exceed £1,000.

(2)   

Where an award by a commanding officer consists of or includes two or more

service compensation orders, the total compensation to be paid under the

orders must not exceed £1,000.

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(3)   

The Secretary of State may by order substitute for any sum for the time being

specified in this section such other sum as appears to him to be appropriate.

137     

Prohibited combinations of punishments

(1)   

Subsections (2) to (6) apply where a commanding officer awards punishment

in respect of an offender.

20

(2)   

If he awards detention, other than a suspended sentence of service detention,

the only additional punishment he may award is a service compensation order.

(3)   

If he awards a suspended sentence of service detention, the only additional

punishments he may award are—

(a)   

reduction in rank or disrating (subject to subsection (8));

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(b)   

a service compensation order.

(4)   

If he awards forfeiture of seniority, the only additional punishments he may

award are—

(a)   

a severe reprimand or a reprimand;

(b)   

a service compensation order.

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(5)   

If he awards reduction in rank or disrating, the only additional punishments

he may award are—

(a)   

a suspended sentence of service detention (subject to subsection (8));

(b)   

a service compensation order.

(6)   

If he awards a fine, he may not also award a service supervision and

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punishment order.

(7)   

Regulations under row 7 of the Table in section 131 may make provision, as

respects any punishment authorised by those regulations, prohibiting that

punishment from being awarded with any other punishment (whether or not

so authorised) specified by the regulations.

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Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court

68

 

(8)   

Nothing in this section authorises a commanding officer to award a particular

punishment where the award of that punishment is prohibited otherwise than

by this section.

(9)   

References in this section to a service compensation order include references to

two or more such orders.

5

138     

Savings for maximum penalties for offences

(1)   

Where a commanding officer awards punishment in respect of a single offence,

nothing in sections 130 to 137 authorises him—

(a)   

to award a punishment of a kind which the Court Martial could not

award for that offence;

10

(b)   

if the offence is under section 42 (criminal conduct), to award a fine

exceeding the maximum allowed by section 42(4).

(2)   

Where a commanding officer awards punishment in respect of two or more

offences—

(a)   

nothing in sections 130 to 137 authorises him to award a punishment of

15

a particular kind unless it is one which the Court Martial could award

for at least one of the offences; and

(b)   

if all the offences are under section 42 and the maximum fine allowed

by section 135 exceeds the permitted maximum, nothing in sections 130

to 137 authorises him to award a fine exceeding the permitted

20

maximum.

(3)   

The permitted maximum is the total of the fines that under section 42(4) the

commanding officer could award in respect of the offences if he had power to

make separate awards in respect of them.

Chapter 2

25

The Summary Appeal Court

139     

The Summary Appeal Court

(1)   

There shall be a court, to be known as the Summary Appeal Court.

(2)   

The Summary Appeal Court may sit in any place, whether within or outside

the United Kingdom.

30

140     

Right of appeal

(1)   

A person in respect of whom—

(a)   

a charge has been heard summarily, and

(b)   

a finding that the charge has been proved has been recorded,

may appeal to the Summary Appeal Court against the finding or against the

35

punishment awarded.

(2)   

Subject to subsection (3), any appeal under this section must be brought—

(a)   

within the period of 14 days beginning with the date on which the

punishment was awarded (“the initial period”); or

(b)   

within such longer period as the court may allow by leave given before

40

the end of the initial period.

 
 

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court

69

 

(3)   

The court may at any later time give leave for an appeal to be brought within

such period as it may allow.

(4)   

The respondent to an appeal under this section is the Director of Service

Prosecutions.

141     

Constitution of the SAC for appeals

5

(1)   

For the purpose of hearing an appeal under section 140, the Summary Appeal

Court is to consist of—

(a)   

a judge advocate;

(b)   

an officer qualified for membership under section 142 and not ineligible

by virtue of section 143; and

10

(c)   

a third person who is an officer or warrant officer so qualified and not

so ineligible.

(2)   

Subsection (1) is subject to any provision made by SAC rules.

(3)   

The judge advocate for an appeal under section 140 is to be specified by or on

behalf of the Judge Advocate General.

15

(4)   

The other members of the court for an appeal under section 140 are to be

specified by or on behalf of the court administration officer.

142     

Officers and warrant officers qualified for membership of the SAC

(1)   

Subject to subsections (2) to (4), an officer or warrant officer is qualified for

membership of the Summary Appeal Court if he is subject to service law.

20

(2)   

An officer is not qualified for membership of the court unless—

(a)   

he has held a commission in any of Her Majesty’s forces for at least

three years, or for periods amounting in the aggregate to at least three

years; or

(b)   

immediately before receiving his commission, he was a warrant officer

25

in any of those forces.

(3)   

A warrant officer is not qualified for membership of the court if he is an acting

warrant officer.

(4)   

An officer or warrant officer is not qualified for membership of the court if—

(a)   

he is a member of the Military Court Service;

30

(b)   

he is a member of or on the staff of the Service Prosecuting Authority;

(c)   

he is a service policeman;

(d)   

he is a member of the Royal Army Chaplains’ Department or the Royal

Air Force Chaplains’ Branch;

(e)   

he has a general qualification within the meaning of section 71 of the

35

Courts and Legal Services Act 1990 (c. 41);

(f)   

he is an advocate or solicitor in Scotland;

(g)   

he is a member of the Bar of Northern Ireland or a solicitor of the

Supreme Court of Northern Ireland; or

(h)   

he has in a relevant territory rights and duties similar to those of a

40

barrister or solicitor in England and Wales, and is subject to

punishment or disability for breach of professional rules.

(5)   

In this section “relevant territory” means—

 
 

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court

70

 

(a)   

any of the Channel Islands;

(b)   

the Isle of Man;

(c)   

a Commonwealth country; or

(d)   

a British overseas territory.

143     

Officers and warrant officers ineligible for membership in particular

5

circumstances

(1)   

An officer is ineligible for membership of the Summary Appeal Court for the

hearing of an appeal under section 140 if—

(a)   

he was the commanding officer of the appellant at any time in the

period beginning with the date of commission of the offence which is

10

the subject of the finding against the appellant and ending with the

start of the appeal hearing;

(b)   

before the summary hearing, he took part in investigating the subject

matter of any finding against the appellant;

(c)   

he is a higher authority who dealt with an application made before the

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summary hearing for permission under section 54 or for extended

powers for the purposes of any provision of section 132, 133, 134, 135 or

193;

(d)   

he serves under the command of a person within paragraph (c);

(e)   

he serves under the command of the officer who conducted the

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summary hearing; or

(f)   

before the summary hearing, he conducted (whether alone or with

other persons) an inquiry into the subject matter of any finding against

the appellant.

(2)   

A warrant officer is ineligible for membership of the Summary Appeal Court

25

for the hearing of an appeal under section 140 if he falls within subsection

(1)(b), (d), (e) or (f).

(3)   

Where there is more than one finding against the appellant, 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.

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(4)   

SAC rules may provide that an officer or warrant officer of a description

prescribed by the rules is ineligible for membership of the Summary Appeal

Court.

144     

Open court

Subject to any provision made by SAC rules, the Summary Appeal Court must

35

sit in open court.

145     

Hearing of appeals

(1)   

An appeal under section 140 against a finding is to be by way of—

(a)   

a rehearing of the charge; and

(b)   

except where section 146(2) applies, a rehearing as respects

40

punishment.

(2)   

An appeal under section 140 against punishment is to be by way of a rehearing

as respects punishment.

 
 

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court

71

 

(3)   

In the case of the hearing of an appeal under section 140, rulings and directions

on questions of law, procedure or practice are to be given by the judge

advocate.

(4)   

Any rulings or directions given under subsection (3) are binding on the court.

146     

Powers of the SAC

5

(1)   

At a rehearing of a charge by virtue of section 145(1)(a), the Summary Appeal

Court may—

(a)   

confirm or quash the finding concerned; or

(b)   

substitute for the finding concerned a finding that another charge has

been proved.

10

(2)   

Where the court quashes the finding, or (if there is more than one finding)

every finding, made in respect of the appellant, it must quash the punishment

which relates to that finding or, as the case may be, to those findings.

(3)   

At a rehearing as respects punishment by virtue of section 145(1)(b) or (2), the

Summary Appeal Court may—

15

(a)   

confirm the punishment awarded; or

(b)   

quash that punishment and award in substitution for it any

punishment which—

(i)   

it would have been within the powers of the officer who

conducted the summary hearing to award; and

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(ii)   

in the opinion of the court, is no more severe than the

punishment originally awarded.

(4)   

SAC rules may make provision in connection with the exercise of the power

under subsection (1)(b) (including provision restricting the exercise of the

power).

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(5)   

In determining—

(a)   

whether to substitute a term of detention, or

(b)   

the length of any such substituted term,

   

the court must take account of any period of the original term of detention that

the appellant served.

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147     

Effect of substituted punishment

(1)   

Unless it otherwise directs, any punishment substituted by the Summary

Appeal Court has effect as if awarded on the day on which the original

punishment was awarded, but this is subject to subsection (2).

(2)   

Where the court substitutes a term of detention (other than a suspended

35

sentence of service detention), the substituted term takes effect—

(a)   

if the court makes a direction under section 188(3), in accordance with

the direction;

(b)   

otherwise, from the beginning of the day on which the punishment is

substituted.

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