Armed Forces Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 2 — The Summary Appeal Court
72

148
Making of, and appeals from, decisions of the SAC
(1)
Subject to section 145(3), any decision of the Summary Appeal Court when
constituted as mentioned in section 141(1) must be determined by a majority of
the votes of the members of the court.
(2)
The appellant or respondent may question any decision of the Summary
5
Appeal Court on the ground that it is wrong in law or is in excess of
jurisdiction, by applying to the Summary Appeal Court to have a case stated
for the opinion of the High Court in England and Wales.
149
Privileges of witnesses and others
A witness before the Summary Appeal Court or any other person whose duty
10
it is to attend the court is entitled to the same immunities and privileges as a
witness before the High Court in England and Wales.
150
SAC rules
(1)
The Secretary of State may by rules (referred to in this Act as “SAC rules”)
make provision with respect to the Summary Appeal Court.
15
(2)
SAC rules may in particular make provision with respect to—
(a)
sittings of the court, including the place of sitting and changes to the
place of sitting;
(b)
the hearing of appeals and other proceedings of the court;
(c)
the practice and procedure of the court;
20
(d)
evidence, including the admissibility of evidence;
(e)
the representation of the appellant.
(3)
Without prejudice to the generality of subsections (1) and (2), SAC rules may
make provision—
(a)
as to oaths and affirmations for members of the court, witnesses and
25
other persons;
(b)
as to objections to, and the replacement of, members of the court;
(c)
as to the constitution of the court;
(d)
for such powers of the court as may be prescribed by the rules to be
exercised by a judge advocate;
30
(e)
for procuring the attendance of witnesses and other persons and the
production of documents and other things, including provision
about—
(i)
the payment of expenses to persons summoned to attend the
court;
35
(ii)
the issue by the court of warrants for the arrest of persons;
(f)
enabling an uncontested appeal to be determined without a hearing;
(g)
as to the bringing or abandonment of appeals;
(h)
for the discharge of a court (including provision as to rehearings
following discharge);
40
(i)
as to notifications and references under section 151;
(j)
for the making and retention of records of the proceedings of the court;
(k)
for the supply of copies of such records, including provision about the
fees payable for the supply of such copies;

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 3 — Review of Summary Findings and Punishments
73

(l)
conferring functions in relation to the court on the court administration
officer;
(m)
for the delegation by the court administration officer of any of his
functions in relation to the court.
(4)
Provision that may be made by the rules by virtue of subsection (2)(d) includes
5
provision applying, with or without modifications, any enactment (whenever
passed) creating an offence in respect of statements admitted in evidence.
(5)
Provision that may be made by the rules by virtue of subsection (3)(e)(ii)
includes provision—
(a)
conferring powers of arrest;
10
(b)
requiring any arrested person to be brought before the court;
(c)
authorising the keeping of persons in service custody, and the
imposition of requirements on release from service custody (including
provision applying section 107(5) and (6) with or without
modifications).
15
(6)
SAC rules may apply, with or without modifications, any enactment or
subordinate legislation (whenever passed or made), including any provision
made by or under this Act.
(7)
In this section “appeal” means an appeal under section 140.
Chapter 3
20
Review of Summary Findings and Punishments
151
Review of summary findings and punishments
(1)
Where—
(a)
a charge has been heard summarily, and
(b)
a finding that the charge has been proved has been recorded,
25

the finding or the punishment awarded may be reviewed at any time.
(2)
A review under this section may be carried out by—
(a)
the Defence Council; or
(b)
any officer appointed by the Defence Council to carry out the review or
any class of review which includes the review.
30
(3)
Subsection (4) applies where—
(a)
a review has been carried out under this section in respect of a finding
or punishment; and
(b)
the person to whom the review relates has not brought an appeal under
section 140 within the period provided by subsection (2) of that section.
35
(4)
The person who carried out the review may, with the leave of the Summary
Appeal Court, refer the finding or punishment to the court to be considered by
it as on an appeal.
(5)
Subsections (6) and (7) apply where—
(a)
a review has been carried out under this section in respect of a finding
40
or punishment; and
(b)
the person to whom the review relates has brought an appeal under
section 140.

Armed Forces Bill
Part 6 — Summary Hearing and Appeals and Review
Chapter 4 — Summary Hearings etc Rules
74

(6)
If—
(a)
the Summary Appeal Court has not completed the hearing of the
appeal, and
(b)
the person who carried out the review considers that any matter arising
at or from the summary hearing should be brought to the notice of the
5
court,

he may notify the court of that matter.
(7)
If—
(a)
the Summary Appeal Court has completed the hearing of the appeal,
and
10
(b)
the person who carried out the review considers that any matter arising
at or from the summary hearing of which the court was not aware
should have been brought to the notice of the court,

he may, with the leave of the court, refer the finding or punishment, including
any finding or punishment substituted or awarded by the court, to the court to
15
be considered by it as on an appeal.
(8)
A reference to the Summary Appeal Court under subsection (4) or (7) shall be
treated for the purposes of this Act as an appeal under section 140 brought by
the person to whom the finding or punishment relates against the finding or
punishment.
20
Chapter 4
Summary Hearings etc Rules
152
Summary hearings etc rules
(1)
The Secretary of State may by rules make provision with respect to—
(a)
the summary hearing of charges by commanding officers;
25
(b)
hearings as regards the making of orders under section 192 (activation
of suspended sentence of service detention).
(2)
Rules under this section may in particular make provision—
(a)
as to the practice and procedure to be followed at hearings;
(b)
as to evidence at hearings;
30
(c)
for the delegation by a commanding officer of any of his functions;
(d)
as to applications for extended powers;
(e)
as to applications for permission to hear summarily charges of a kind
mentioned in section 54;
(f)
requiring prescribed persons to be notified of prescribed matters.
35
(3)
In subsection (2) “prescribed” means prescribed by rules under this section.

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 1 — The Court Martial
75

Part 7
Trial by Court Martial
Chapter 1
The Court Martial
153
The Court Martial
5
(1)
There shall be a court, to be known as the Court Martial.
(2)
The Court Martial may sit in any place, whether within or outside the United
Kingdom.
154
Constitution of the Court Martial
(1)
In the case of any proceedings, the Court Martial is to consist of—
10
(a)
a judge advocate; and
(b)
a prescribed number of other persons of whom—
(i)
a prescribed number must be officers or warrant officers
qualified for membership under section 155 and not ineligible
by virtue of section 156; and
15
(ii)
the rest must be officers so qualified and not so ineligible.
(2)
Subsection (1) is subject to any provision made by Court Martial rules.
(3)
The judge advocate for any proceedings is to be specified by or on behalf of the
Judge Advocate General.
(4)
The other members of the court for any proceedings are to be specified by or
20
on behalf of the court administration officer.
(5)
In this section “prescribed” means prescribed by Court Martial rules.
155
Officers and warrant officers qualified for membership of the Court Martial
(1)
Subject to subsections (2) to (4), an officer or warrant officer is qualified for
membership of the Court Martial if he is subject to service law.
25
(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
30
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;
35
(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;

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 2 — Court Martial Proceedings
76

(e)
he has a general qualification within the meaning of section 71 of the
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
5
(h)
he has in a relevant territory rights and duties similar to those of a
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—
(a)
any of the Channel Islands;
10
(b)
the Isle of Man;
(c)
a Commonwealth country; or
(d)
a British overseas territory.
156
Officers and warrant officers ineligible for membership in particular
circumstances
15
(1)
An officer is ineligible for membership of the Court Martial for proceedings
after the arraignment of a defendant if—
(a)
he was the commanding officer of the defendant at any time in the
period beginning with the date of commission of the offence to which
the arraignment relates and ending with the arraignment;
20
(b)
he has taken part in investigating the subject matter of any charge
against the defendant; or
(c)
he has conducted (whether alone or with other persons) an inquiry into
the subject matter of any charge against the defendant.
(2)
A warrant officer is ineligible for membership of the Court Martial for
25
proceedings after the arraignment of a defendant if he falls within subsection
(1)(b) or (c).
(3)
Where a defendant is arraigned in respect of more than one offence, 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.
30
(4)
Court Martial rules may provide that an officer or warrant officer of a
description prescribed by the rules is ineligible for membership of the Court
Martial for a description of proceedings so prescribed.
Chapter 2
Court Martial Proceedings
35
157
Open court
Subject to any provision made by Court Martial rules, the Court Martial must
sit in open court.
158
Rulings and directions
(1)
In the case of proceedings where the Court Martial consists of a judge advocate
40
and one or more other persons, rulings and directions on questions of law,
procedure or practice are to be given by the judge advocate.

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 2 — Court Martial Proceedings
77

(2)
Any rulings or directions given under subsection (1) are binding on the court.
159
Decisions of Court Martial: finding and sentence
(1)
Subject to the following provisions of this section, the finding of the Court
Martial on a charge, and any sentence passed by it, must be determined by a
majority of the votes of the members of the court.
5
(2)
The judge advocate is not entitled to vote on the finding.
(3)
In the case of an equality of votes on the finding, the court must acquit the
defendant.
(4)
In the case of an equality of votes on the sentence, the judge advocate has a
casting vote.
10
160
Power of Court Martial to convict of offence other than that charged
(1)
Where the Court Martial acquits a person of an offence specifically charged in
the charge sheet, but the allegations in the charge sheet amount to or include
(expressly or by implication) an allegation of another service offence, the court
may convict him of that other offence.
15
(2)
For the purposes of subsection (1)—
(a)
an allegation of an offence to which section 39(1) applies (offence X)
shall be taken as including an allegation of an offence under that section
of attempting to commit offence X; and
(b)
an allegation of a completed section 42 offence shall be taken as
20
including an allegation of a section 42 offence of attempt.
(3)
Subsection (1) applies in relation to a charge sheet containing more than one
charge as if each charge were contained in a separate charge sheet.
(4)
In this section—
“a completed section 42 offence” means an offence that, by virtue of
25
section 1(4) of the Criminal Attempts Act 1981 (c. 47) as modified by
section 43 of this Act, is an offence to which section 1 of that Act applies;
“a section 42 offence of attempt” has the meaning given by section 44(2).
161
Privileges of witnesses and others
A witness before the Court Martial or any other person whose duty it is to
30
attend the court is entitled to the same immunities and privileges as a witness
before the High Court in England and Wales.
162
Court Martial rules
(1)
The Secretary of State may by rules (referred to in this Act as “Court Martial
rules”) make provision with respect to the Court Martial.
35
(2)
Court Martial rules may in particular make provision with respect to—
(a)
sittings of the court, including the place of sitting and changes to the
place of sitting;
(b)
trials and other proceedings of the court;
(c)
the practice and procedure of the court;
40

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 2 — Court Martial Proceedings
78

(d)
evidence, including the admissibility of evidence;
(e)
the representation of the defendant;
(f)
appeals from the Service Civilian Court.
(3)
Without prejudice to the generality of subsections (1) and (2), Court Martial
rules may make provision—
5
(a)
as to oaths and affirmations for members of the court, witnesses and
other persons;
(b)
as to objections to, and the replacement of, members of the court;
(c)
as to the constitution of the court;
(d)
for such powers of the court as may be prescribed by the rules to be
10
exercised by a judge advocate;
(e)
for procuring the attendance of witnesses and other persons and the
production of documents and other things, including provision
about—
(i)
the payment of expenses to persons summoned to attend the
15
court;
(ii)
the issue by the court of warrants for the arrest of persons;
(f)
as to the amendment of charges;
(g)
for the taking into consideration, when sentencing an offender, of any
other service offence committed by him;
20
(h)
for appeals against any orders (including directions) of the court
prohibiting or restricting the publication of any matter or excluding the
public from any proceedings;
(i)
for the discharge of a court (including provision as to retrials and
rehearings following discharge);
25
(j)
for the powers conferred by section 7 of the Bankers’ Books Evidence
Act 1879 (c. 11) (orders for the inspection of bankers’ books for the
purposes of legal proceedings) to be exercisable by a judge advocate as
well as by the court or a judge within the meaning of that Act;
(k)
for the making and retention of records of the proceedings of the court;
30
(l)
for the supply of copies of such records, including provision about the
fees payable for the supply of such copies;
(m)
conferring functions in relation to the court on the court administration
officer;
(n)
for the delegation by the court administration officer of any of his
35
functions in relation to the court.
(4)
Provision that may be made by the rules by virtue of subsection (2)(d) includes
provision applying, with or without modifications, any enactment (whenever
passed) creating an offence in respect of statements admitted in evidence.
(5)
Provision that may be made by the rules by virtue of subsection (3)(e)(ii)
40
includes provision—
(a)
conferring powers of arrest;
(b)
requiring any arrested person to be brought before the court;
(c)
authorising the keeping of persons in service custody, and the
imposition of requirements on release from service custody (including
45
provision applying section 107(5) and (6) with or without
modifications).
(6)
Court Martial rules must secure that, after arraignment, charges may not be
amended—