Article 88E Direction that variation proceedings be held without lay membersF1

(1)

Where a judge advocate directs under rule 88D that variation proceedings are to be held, they may direct that there are to be no lay members.

(2)

A judge advocate may not give a direction under this rule unless they are satisfied that Conditions A and B are met.

(3)

Condition A is that one or more of the original lay members could not, without substantial inconvenience, attend the variation proceedings at the time and place appointed.

(4)

Condition B is that the appellant would be unfairly prejudiced if—

(a)

the proceedings were postponed until the earliest time at which the judge advocate, the original lay members and the appellant could, without substantial inconvenience, attend the variation proceedings (whether at the place originally appointed or at any other place), and

(b)

the SAC punishment were then varied in the way in which it would be most likely to be varied if no direction were given under this rule and the original lay members were specified for the proceedings and could attend.

(5)

In this rule—

(a)

any reference to the attendance of the original lay members includes their attendance by live link, as defined by rule 88F(2) (and for this purpose it is to be assumed that they have been or would be specified as lay members for the variation proceedings); and

(b)

any reference to the attendance of the appellant includes their attendance by live link as defined by rule 25(3)(a).

(6)

In this rule—

“inconvenience” includes expense and adverse effect on the operational effectiveness of any of His Majesty’s forces, and
“the original lay members” means the persons who were lay members of the court when it awarded or confirmed the SAC punishment.

Annotations

Textual amendments

F1: Pt. 12A inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 13