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The Armed Forces (Court Martial) Rules 2009

Draft. This instrument was laid in draft and may differ from the one made. Look for the made version under its title.

Draft 2009, ISBN 9780111479216

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Draft Rules laid before Parliament under section 373(3) of the Armed Forces Act 2006, for approval by resolution of each House of Parliament.

Defence

Made *** 2009

Coming into force 31st October 2009

The Secretary of State, in exercise of the powers conferred by section 19(5) of the Court Martial Appeals Act 1968f1, sections 111, 113, 132 and 135 of, paragraph 5 of Schedule 6 to, and paragraph 2(6) of Schedule 7 to, the Criminal Justice Act 2003f2, and sections 125(3), 155, 157(4), 158, 163, 165 and 286(4) of the Armed Forces Act 2006f3, makes the following Rules:

Annotations to the whole text

Footnotes

f1

1968 c. 20. Section 19(5) of the Court Martial Appeals Act 1968 is inserted by paragraph 20 of Schedule 8 to the Armed Forces Act 2006 (c. 52).

f2

2003 c. 44. By virtue of section 113 of, and paragraph 5 of Schedule 6 to, the Criminal Justice Act 2003 (“the 2003 Act”), section 111 has effect as if, in its subsection (7), the definition of “rules of court” included rules regulating the practice and procedure of service courts. By virtue of section 135 of, and paragraph 2(6) of Schedule 7 to, the 2003 Act, section 132 is modified so that, in its subsection (10), the definition of “rules of court” includes rules regulating the practice and procedure of service courts. By virtue of paragraph 6 of Schedule 6 and paragraph 8 of Schedule 7 (as amended by paragraph 234(4) and paragraph 235(6) of Schedule 16 to the Armed Forces Act 2006), “service court” includes the Court Martial.

f3

2006 c. 52.

Contents

  1. Part 1: PRELIMINARY
  2. 1Citation and commencement
  3. 2Interpretation: proceedings and parties
  4. 3Interpretation: general
  5. Part 2: SERVICE OF DOCUMENTS
  6. 4Interpretation of Part 2
  7. 5Service on a person to whom proceedings relate
  8. 6Service on the court administration officer
  9. 7Service on the Director
  10. 8Service on other individuals
  11. 9Service on a corporation
  12. 10Service by another method
  13. 11Service by commanding officer
  14. 12Service by fax or electronic means
  15. 13Date of service
  16. 14Proof of service
  17. Part 3: PROCEEDINGS: GENERAL
  18. 15The court administration officer
  19. 16Listing of proceedings
  20. 17Notification of proceedings
  21. 18Live links
  22. 19Proceedings in absence of defendant etc
  23. 20Deliberation in private
  24. 21Oaths and affirmations
  25. 22Interpreters
  26. 23Record of proceedings
  27. 24Exhibits
  28. 25Termination of proceedings
  29. 26Circumstances not provided for
  30. Part 4: MEMBERS OF THE COURT
  31. 27Proceedings without lay members
  32. 28Powers that may be exercised by a judge advocate
  33. 29Proceedings requiring at least five lay members
  34. 30Additional lay members
  35. 31Warrant officers
  36. 32Persons ineligible for membership in particular circumstances
  37. 33Civilians
  38. 34The president of the board
  39. 35Objections to lay members
  40. 36Waiting members
  41. 37Swearing of lay members
  42. 38Judge advocate’s power to direct lay members to withdraw
  43. Part 5: ASSISTANCE AND REPRESENTATION
  44. 39Legal representatives
  45. 40Parent or guardian of young civilian
  46. Part 6: ARREST OF DEFENDANT
  47. 41Arrest by service police etc before arraignment
  48. 42Warrant for arrest by civilian police
  49. Part 7: ADVANCE INFORMATION
  50. 43Service of advance information
  51. 44Information as to possibility of activation order etc
  52. Part 8: PRELIMINARY PROCEEDINGS
  53. 45Listing of initial preliminary proceedings
  54. 46Listing of further preliminary proceedings
  55. 47Preliminary proceedings in chambers without notice to defendant
  56. 48Outline of prosecution case
  57. 49Powers of judge advocate
  58. 50Appeals
  59. Part 9: JOINDER, SEVERANCE AND AMENDMENT
  60. 51Joinder of charges
  61. 52Severance of charges
  62. 53Severance of defendants
  63. 54Amendment of charges
  64. 55Consequences of exercise of powers under this Part
  65. Part 10: ARRAIGNMENT
  66. 56Arraignment
  67. 57Order that charge lie on the file
  68. 58Offer of no evidence
  69. 59Change of plea
  70. 60Powers of Director after arraignment
  71. 61Retrial authorised by Appeal Court
  72. Part 11: ATTENDANCE OF WITNESSES
  73. 62Notification of witnesses
  74. 63Issue of witness summons on application to a judge advocate
  75. 64Application for witness summons to produce a document, etc: judge advocate’s assessment of relevance and confidentiality
  76. 65Issue of witness summons of judge advocate’s own motion
  77. 66Application to withdraw a witness summons
  78. 67Oral applications
  79. 68Further process to secure attendance of witness
  80. 69Review of custody of witness
  81. 70Entitlement to witness expenses
  82. 71Order for inspection of banker’s books
  83. Part 12: EVIDENCE
  84. Chapter 1: General
  85. 72Application and interpretation of Part 12
  86. 73Rules of evidence
  87. 74Oral testimony to be given on oath
  88. 75Proof by written statement
  89. 76Proof by formal admission
  90. 77Use of documents to refresh memory
  91. Chapter 2: Evidence of bad character
  92. 78Notice of intention to adduce evidence of a defendant’s bad character
  93. 79Application to exclude evidence of a defendant’s bad character
  94. 80Application for leave to adduce evidence of the bad character of a non-defendant
  95. Chapter 3: Hearsay evidence
  96. 81Notice of intention to adduce hearsay evidence
  97. 82Counter-notice objecting to the admission of hearsay evidence
  98. Chapter 4: Evidence of service matters
  99. 83Evidence of enlistment
  100. 84Evidence as to service etc
  101. 85Service records
  102. 86Defence Council instructions, regulations and certificates
  103. 87Standing or routine orders
  104. Chapter 5: Expert evidence
  105. 88Expert evidence
  106. Chapter 6: Special measures directions
  107. 89Interpretation of Chapter 6
  108. 90Witnesses eligible for assistance on grounds of age or incapacity
  109. 91Witnesses eligible for assistance on grounds of fear or distress about testifying
  110. 92Special measures available
  111. 93Special measures direction relating to eligible witness
  112. 94Evidence given in private
  113. 95Video recorded evidence in chief
  114. 96Examination of witness through intermediary
  115. 97Application for special measures direction: general
  116. 98Application for special measures direction permitting admission of video recorded evidence in chief
  117. 99Variation or discharge of special measures direction
  118. 100Warning to lay members
  119. Part 13: TRIAL PROCEDURE
  120. 101Opening addresses
  121. 102Examination of witnesses
  122. 103Presence of witnesses
  123. 104Submission of no case to answer
  124. 105The case for the defence
  125. 106Finding of not guilty before conclusion of the defence
  126. 107Closing addresses
  127. 108Summing up
  128. 109Deliberation on findings
  129. 110Announcement of findings
  130. Part 14: SENTENCING PROCEEDINGS
  131. 111Application and interpretation of Part 14
  132. 112Dispute on facts after plea of guilty
  133. 113Pre-sentence report and previous convictions
  134. 114Information before sentencing
  135. 115Offences taken into consideration
  136. 116Mitigation of sentence
  137. 117Pronouncement of sentence
  138. Part 15: VARIATION PROCEEDINGS
  139. 118Power to vary sentence
  140. 119Direction that variation proceedings be held
  141. 120Direction that variation proceedings be held without lay members
  142. 121Attendance of lay members by live link
  143. 122Decision on variation of sentence
  144. 123Announcement of sentence as varied
  145. 124Power to order offender’s release from custody
  146. Part 16: APPELLATE PROCEEDINGS
  147. 125Notice of appeal
  148. 126Extension of initial period
  149. 127Leave to appeal out of time
  150. 128Application of Act and Rules to appellate proceedings
  151. 129Abandonment of appeal
  152. Part 17: ACTIVATION PROCEEDINGS
  153. 130Interpretation of Part 17
  154. 131Offence committed during operational period of suspended sentence of imprisonment
  155. 132Offence committed during operational period of suspended sentence of service detention
  156. 133Offence committed during release period of detention and training order
  157. 134Application for activation proceedings
  158. 135Warrant for offender’s arrest
  159. 136Review of custody
  160. 137Disclosure by Director
  161. 138Procedure in activation proceedings
  162. Part 18: ANCILLARY PROCEEDINGS
  163. Chapter 1: Community order proceedings
  164. 139Application and interpretation of Chapter 1
  165. 140Breach of requirements: application for summons or warrant
  166. 141Breach of requirements: arrest under warrant
  167. 142Revocation of order with or without re-sentencing
  168. 143Amendment of requirements
  169. 144Extension of unpaid work requirement
  170. Chapter 2: Other ancillary proceedings
  171. 145Review of service compensation order
  172. 146Application for time to pay financial penalty
  173. 147Remission of fine
  174. 148Remission of case by Appeal Court for consideration of service restraining order
  175. 149Variation or revocation of service restraining order
  176. 150Variation or revocation of order for recognizance
  177. 151Certification of contempt of court
  178. Part 19: RESTRICTIONS ON PUBLIC ACCESS AND REPORTING
  179. 152Proceedings in camera
  180. 153Withholding of matter from the public in proceedings before the court
  181. 154Appeals
  182. Part 20: CONSEQUENCES OF ELECTION FOR COURT MARTIAL TRIAL
  183. 155Interpretation
  184. 156Charge referred to Director following election on another charge
  185. 157Powers of the Director
  186. 158Sentence where charge added to, or substituted for, election charge
  187. 159Sentence where charge referred following election on another charge
  188. 160Multiple relevant offences: application of section 165(4)
  189. 161Sentence for multiple relevant offences
  190. 162Multiple relevant offences: powers of Appeal Court
  191. 163Offences associated with a relevant offence
  192. 164Activation of suspended sentence of detention
  193. 165Service restraining orders
  194. 166Review of unduly lenient sentence
  195. Part 21: TRANSITORY AND TRANSITIONAL PROVISIONS
  196. 167Supreme Court of Northern Ireland
  197. 168Transitional
  198. Signature
  199. Schedule 1: OATHS AND AFFIRMATIONS
  200. 169Paragraph 169
  201. Schedule 2: TRANSITIONAL PROVISIONS
  202. Part 1: GENERAL
  203. 170Interpretation
  204. 171Record of court-martial proceedings
  205. 172Persons ineligible for membership in particular circumstances
  206. Part 2: STEPS TAKEN BEFORE COMMENCEMENT
  207. 173Service of documents
  208. 174Court administration officers
  209. 175Prosecuting officers
  210. 176Legal representatives
  211. 177Arraignment
  212. 178Directions etc
  213. Part 3: EVIDENCE
  214. 179Proof by written statement
  215. 180Evidence of enlistment or entry for service
  216. 181Documents signed by or on behalf of a person’s commanding officer
  217. 182Special measures
  218. Part 4: SENTENCING
  219. 183SDA offences
  220. 184Activation of suspended sentence of imprisonment
  221. 185SDA conditional discharge orders
  222. 186Community supervision orders
  223. 187Variation proceedings
  224. 188Power to order offender’s release from custody
  225. Part 5: APPELLATE PROCEEDINGS
  226. 189Appeal from a Standing Civilian Court
  227. Part 6: ACTIVATION PROCEEDINGS
  228. 190Activation proceedings in respect of a suspended sentence of detention under NDA 1957
  229. Part 7: ANCILLARY PROCEEDINGS
  230. 191Review of stoppages or SDA compensation order
  231. 192Application for time to pay financial penalty
  232. 193Variation or revocation of order for recognizance
  233. Part 8: CONSEQUENCES OF ELECTION FOR COURT-MARTIAL TRIAL
  234. 194Interpretation
  235. 195Application of Part 20 to SDA elections
  236. 196Charge referred to higher authority following election for court-martial trial on another charge
  237. 197Powers of the Director
  238. 198Sentence for an SDA election offence relevant by virtue of section 165(1)(a) or (b)
  239. 199Sentence where charge referred following SDA election on another charge
  240. 200Multiple relevant offences where election under AA 1955
  241. 201Sentence for multiple relevant offences
  242. 202Activation of suspended SDA sentence of detention
  243. Explanatory note