Explanatory note

These Rules set out the procedures which are to apply with respect to proceedings under section 75C, 75F(1) or 75G(1) of the Army Act 1955 (as inserted by sections 1(1), 2(1) and 3(1) of the Armed Forces Discipline Act 2000). Under those provisions, the authority of a judicial officer is required to keep a person in military custody for a period of more than 48 hours without charge, or for any period after charge.

Part I of the Rules concerns preliminary matters. It includes provisions concerning service of documents (rules 3 and 4) and for substituted service where the person to whom the proceedings relate is in military custody and is not legally represented. In these circumstances, where a document is required to be served by the person to whom the proceedings relate on any person, rule 5 allows him to serve the document on his commanding officer. A duty is then placed on the commanding officer to serve the document on the person identified by the person to whom the proceedings relate.

Part II specifies the manner in which the court administration officer and the person to whom the proceedings relate are to be notified, and the information to be included in the notification, where it is necessary to bring the person to whom the proceedings relate before a judicial officer in pursuance of section 75C, 75F(1), 75G(2) or 75K(7) or (8) of the Army Act 1955 (“the Act”).

Part III concerns reviews under section 75G(1) of the Act. Rule 13 makes provision as to the date on which the review is to take place. Rule 14 specifies the circumstances in which a review is to be carried out at a hearing. Rule 15 confers a right in specified circumstances on the commanding officer and the accused to make written representations, both as to the need for a hearing and the matters which the judicial officer should take into account when reviewing the order.

Part IV provides for the court administration officer to determine the time and place of any hearing which is required to take place by virtue of section 75C or 75F(1) of the Act (rule 18). Rule 19 gives the commanding officer and the person to whom the proceedings relate the right to be legally represented at a hearing and the further right to the person to whom the proceedings relate to be legally represented in respect of the proceedings. Rule 20 sets out the qualifications which legal representatives are required to hold. Rule 21 introduces Schedule 3 and sets out the procedure concerning the issuing of witness summons. Rule 22 enables witnesses other than the commanding officer and the person to whom the proceedings relate, with the permission of the judicial officer, to give evidence at a hearing via a live TV link or other similar arrangements.

Part V makes provision with respect to the conduct of hearings before a judicial officer. Rule 23 puts the judicial officer in a similar position to a magistrate considering a bail application in that he is not bound by the strict rules of evidence. It also gives commanding officers and persons suspected or accused of offences the right to give evidence and address the judicial officer. Rule 24 enables the commanding officer, the person to whom the proceedings relate and their legal representatives to be treated as being present at a hearing if they appear by live TV link or other similar arrangements. Rules 26 to 28 make provision with respect to witnesses. Rule 27 and Schedule 4 make provision as to the administration of oaths and affirmations. Rule 28 provides that witnesses are to be entitled to the same immunities and privileges as witnesses before the High Court in England and Wales.

Schedule 2 is introduced by rules 17 and 29 and specifies the forms to be used by the judicial officer in recording any decision taken, or order made, in respect of the keeping of a person in custody.