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Armed Forces Act 2006

Type Public General Act

Publication 2006-11-08

Last updated 2026-04-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(h) with respect to the use for the purposes of the proceedings of live television or telephone links or similar arrangements, including the use of such links or other arrangements as a means of satisfying any requirement imposed by this Act for a person to be brought before a judge advocate;

(i) for the appointment of persons to discharge administrative functions under the rules.

Part 5 — Investigation, Charging and Mode of Trial

Chapter 1 — Investigation

Duties of commanding officers

CO to ensure service police aware of possibility serious offence committed

113

(1) If an officer becomes aware of an allegation or circumstances within subsection (2), he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a Schedule 2 offence has or may have been committed by a relevant person.

(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

(4) In this Chapter “Schedule 2 offence” means a service offence listed in Schedule 2.

(5) The Secretary of State may by order amend Schedule 2.

CO to ensure service police aware of certain circumstances

114

(1) If an officer of a prescribed description becomes aware of circumstances of a prescribed description, he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) In this section “prescribed” means prescribed by regulations under section 128.

Duty of CO with respect to investigation of service offences

115

(1) This section applies where—

(a) an officer becomes aware of an allegation or circumstances within subsection (2); and

(b) the officer is not required by section 113(1) or 114(1) to ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a service offence has or may have been committed by a relevant person.

(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

(4) The officer must either—

(a) ensure that the matter is investigated in such way and to such extent as is appropriate; or

(b) ensure, as soon as is reasonably practicable, that a service police force or the tri-service serious crime unit is aware of the matter.

(5) Subsection (4) does not apply if the matter has already been investigated in such way and to such extent as is appropriate.

Duty of service policeman following investigation

Referral of case following investigation by service or civilian police

116

(1) This section applies where—

(a) a service police force or the tri-service serious crime unit has investigated an allegation which indicates, or circumstances which indicate, that a service offence has or may have been committed; or

(b) a UK police force or overseas police force has investigated such an allegation or such circumstances and has referred the matter to a service police force or the tri-service serious crime unit.

(2) If—

(a) a service policeman considers that there is sufficient evidence to charge a person with a service offence that is not a CO offence, or

(b) a service policeman considers that there is sufficient evidence to charge a person with a service offence that is a CO offence, and is aware of circumstances of a description prescribed by regulations under section 128 for the purposes of this paragraph,

he must refer the case to the Director of Service Prosecutions (“the Director”).

(3) If—

(a) a service policeman considers that there is sufficient evidence to charge a person with a service offence, ...

(b) subsection (2) does not apply , and

he must refer the case to the person's commanding officer.

(4) Subsection (4A) applies if—

(a) the allegation or circumstances would indicate to a reasonable person that a person has committed, or might have committed, a service offence which is not one that may be dealt with at a summary hearing (see section 53), or

(b) any circumstances investigated are circumstances of a description prescribed by regulations under section 128 for the purposes of section 114,

and a service policeman proposes not to refer the case to the Director under subsection (2) or section 117(5).

(4A) If this subsection applies, the service policeman must consult the Director as soon as is reasonably practicable (and before any referral of the case under subsection (3)).

(5) For the purposes of this section—

(a) there is sufficient evidence to charge a person with an offence if, were the evidence suggesting that the person committed the offence to be adduced in proceedings for the offence, the person could properly be convicted , and

(b) a service offence committed by a person is a “CO offence” if a charge against the person in respect of the offence is capable of being heard summarily by the person's commanding officer (see section 52).

Section 116: position where investigation is of multiple offences or offenders

117

(1) This section applies where the investigation mentioned in section 116(1) relates to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons.

(2) Each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

(3) Subsections (4) and (5) apply if—

(a) at least one of the cases has been, or must be, referred to the Director of Service Prosecutions (“the Director”) under section 116(2),

(b) a service policeman considers that there is sufficient evidence to charge a person with a service offence in another of the cases,

(d) the service policeman considers that there is, or may be, a connection between a case falling within paragraph (a) and the case falling within paragraph (c), whether direct or indirect, that makes it appropriate for both cases to be referred to the Director.

(4) The service policeman must consult the Director about the existence and nature of the connection between those cases.

(5) Following that consultation, if the service policeman considers that there is a connection described in subsection (3)(d), the service policeman must refer the case falling within subsection (3)(c) to the Director.

(6) The reference in this section to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5)(a).

Duty of service policeman to notify CO of referral to DSP

118

(1) This section applies where a service policeman considers that there is sufficient evidence to charge a person (“A”) with a service offence and refers the case under section 116(2) or 117(5) to the Director of Service Prosecutions.

(2) The service policeman must as soon as reasonably practicable after referring the case—

(a) notify A's commanding officer of the referral; and

(b) provide prescribed documents to A's commanding officer.

(3) A notification under subsection (2)(a) must specify the service offence that the service policeman considers there is sufficient evidence to charge A with.

(3A) Where that offence is a CO offence, the notification must—

(a) specify whether the case is referred under section 116(2) or 117(5), and

(b) if the case is referred under section 116(2), specify the circumstances that bring the case within section 116(2)(b).

(4) In this section—

(a) any reference to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5)(a);

(aa) any reference to a CO offence is to be read in accordance with section 116(5)(b);

(b) “prescribed documents” means documents prescribed for the purposes of subsection (2)(b) by regulations under section 128.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 2 — Charging and Mode of Trial

Powers of charging etc

Circumstances in which CO has power to charge etc

119

(1) This section sets out the circumstances in which a commanding officer has initial powers (defined by section 120) in respect of a case.

(2) If a commanding officer of a person becomes aware of an allegation which indicates, or circumstances which indicate, that the person has or may have committed a service offence, he has initial powers in respect of the case.

(3) Subsection (2) does not apply if the allegation or circumstances—

(a) give or have given rise to the duty under section 113(1) or 114(1);

(b) are being or have been investigated by a service police force or the tri-service serious crime unit; or

(c) are being or have been investigated by a UK police force or overseas police force, and it appears to the commanding officer that that force may refer the matter to the service police.

(4) A commanding officer has initial powers in respect of a case which a service policeman has referred to him under section 116(3) (referral of case following investigation by service or civilian police).

(5) A commanding officer has initial powers in respect of a case which the Director of Service Prosecutions has referred to him under section 121(4) (referral of case by DSP).

(6) If an allegation or circumstances mentioned in subsection (2) relate to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons, each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

Power of CO to charge etc

120

(1) Subsections (2) and (3) apply where under section 119 a commanding officer has initial powers in respect of a case.

(2) The officer may bring, in respect of the case, one or more charges that are capable of being heard summarily (see section 52).

(3) The officer may refer the case to the Director of Service Prosecutions.

(4) A charge brought under subsection (2) is to be regarded for the purposes of this Part as allocated for summary hearing.

(5) Where an officer has referred a case under subsection (3), the officer must also refer to the Director of Service Prosecutions any other case—

(a) which is of a description prescribed by regulations under section 128 for the purposes of this subsection, and

(b) as respects which the officer has initial powers,

....

Power of DSP to direct bringing of charge etc

121

(1) The powers in subsections (1A) to (5) are exercisable by the Director of Service Prosecutions (“the Director”) in respect of a case which has been referred to him under—

(a) section 116(2) (referral of case following investigation by service or civilian police);

(aa) section 117(5) (referral of connected cases); or

(b) section 120(3) or (5) (referral of case by CO).

(1A) The Director may bring a charge or charges against the person concerned in respect of the case.

(1B) If—

(a) the Director brings a charge under subsection (1A), and

(b) the Service Civilian Court has jurisdiction to try the charge,

the Director may allocate the charge for trial by that court.

(2) The Director may direct the commanding officer of the person concerned to bring, in respect of the case, such charge or charges against him as may be specified in the direction.

(3) If—

(a) the Director makes a direction under subsection (2), and

(b) the Service Civilian Court has jurisdiction to try the charge specified in the direction,

the Director may allocate the charge for trial by that court.

(4) The Director may refer the case to the commanding officer of the person concerned, but only if he has decided that it would not be appropriate to bring a charge under subsection (1A) or to make a direction under subsection (2) in respect of it.

(5) The Director may make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of any offence as regards which he could bring a charge under subsection (1A) or make a direction under subsection (2).

Charges brought at direction of DSP

122

(1) Where a direction under section 121(2) is given to an officer, he must bring the charge or charges specified in the direction.

(2) A charge brought by the Director of Service Prosecutions (“the Director”) under section 121(1A) or by an officer as a result of a direction under section 121(2)—

(a) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial if the Director allocated it (under section 121(1B) or (3)) for trial by that court;

(b) otherwise, is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Powers of commanding officer or DSP after charge etc

Powers of CO after charge

123

(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for summary hearing.

(2) The accused's commanding officer may—

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) refer the charge to the Director of Service Prosecutions.

(3) The powers under subsection (2) may be exercised before or after the start of any summary hearing of the charge.

(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be capable of being heard summarily (see section 52).

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for summary hearing.

(7) Where a charge is referred under subsection (2)(e) to the Director of Service Prosecutions, the charge and any other charge brought in respect of the same case are to be regarded for the purposes of this Part as allocated for Court Martial trial.

CO to hear charge allocated for summary hearing

124

(1) This section applies in respect of a charge which is regarded for the purposes of this Part as allocated for summary hearing.

(2) The accused's commanding officer must hear the charge summarily unless—

(a) he exercises his powers under section 123(2)(b), (d) or (e) in respect of the charge (substitution of charge, discontinuance of proceedings, or referral to DSP); or

(b) the accused elects Court Martial trial of the charge (see section 129).

(3) Subsection (2) is subject to sections 52 (charges capable of being heard summarily) and 54 (charges which may be heard summarily only with permission or by senior officer).

Powers of DSP in respect of charge allocated for Court Martial trial

125

(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Court Martial trial.

(2) The Director of Service Prosecutions may—

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) refer the charge to the accused's commanding officer, but only if the charge is capable of being heard summarily (see section 52);

(f) allocate the charge for trial by the Service Civilian Court, but only if the charge is one that that court has jurisdiction to try;

(g) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3) Court Martial rules may restrict the exercise of powers under subsection (2)—

(a) after arraignment by the Court Martial; or

(b) after referral of the charge to the Court Martial under section 279(4) or 280(3) (referral by SCC); ...

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

(7) Any charge referred under subsection (2)(e) to a commanding officer is to be regarded for the purposes of this Part as allocated for summary hearing.

(8) Any charge allocated under subsection (2)(f) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

Powers of DSP in respect of charge allocated for SCC trial

126

(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(2) The Director of Service Prosecutions may—

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) allocate the charge for trial by the Court Martial;

(f) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3) SCC rules may restrict the exercise, after a decision by the Service Civilian Court under section 279 as to whether it should try the charge, of powers under subsection (2).

(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be one that the Service Civilian Court has jurisdiction to try.

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(7) Any charge allocated under subsection (2)(e) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Chapter 3 — Supplementary

Directions by DSP barring further proceedings

127

(1) A direction under this subsection is a direction that for the purposes of section 63 the person specified in the direction is to be treated as acquitted of the service offence so specified.

(2) A direction under this subsection is a direction that for the purposes of sections 63 and 64 the person specified in the direction is to be treated as acquitted of the service offence so specified.

Regulations for purposes of Part 5

128

(1) The Secretary of State may by regulations make such provision as he considers necessary or expedient for the purposes of any provision of this Part.

(2) Regulations under this section may in particular make provision—

(a) for the delegation by a commanding officer of any of his functions;

(b) as to the bringing, amendment and substitution of charges;

(c) as to the referral of cases and charges, including provision requiring a commanding officer in prescribed circumstances to refer a case or charge to the Director of Service Prosecutions;

(d) as to the examination of witnesses for the purpose of obtaining information of assistance to the Director of Service Prosecutions in connection with his functions under Chapter 2;

(e) requiring prescribed persons to be notified of prescribed matters.

(3) In subsection (2) “prescribed” means prescribed by regulations under this section.

Part 6 — Summary Hearing and Appeals and Review

Chapter 1 — Summary Hearing

Right to elect Court Martial trial

129

(1) Before hearing a charge summarily the commanding officer must, in the way specified by rules under section 153, give the accused the opportunity of electing Court Martial trial of the charge.

(2) If the accused elects Court Martial trial of the charge—

(a) the commanding officer must refer the charge to the Director of Service Prosecutions; and

(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.

(3) Where two or more charges against the accused are to be heard summarily together, an election for Court Martial trial in respect of any of the charges takes effect as an election in respect of all of them.

(4) Subsection (5) applies if an opportunity to elect Court Martial trial of a charge (“the original charge”) has been given under subsection (1) and subsequently—

(a) the charge is amended;

(b) another charge is substituted for it; or

(5) Subsection (1) applies in relation to the amended, substituted or additional charge; and if the amendment, substitution or addition takes place after the start of the summary hearing, that subsection has effect in relation to the charge as if the reference to hearing a charge summarily were to proceeding with the hearing.

(6) In subsection (4)—

(a) “amended” means amended under section 123(2)(a) or, in the case of a charge referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, amended under section 125(2)(a) and referred to the commanding officer under section 125(2)(e);

(b) “substituted” means substituted under section 123(2)(b) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, substituted under section 125(2)(b) and referred to the commanding officer under section 125(2)(e);

(c) “brought”, in relation to an additional charge, means brought under section 123(2)(c) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, brought under section 125(2)(c) and referred to the commanding officer under section 125(2)(e).

(7) Subsection (8) applies where—

(a) an opportunity to elect Court Martial trial of a charge has been given under this section;

(b) the accused has not elected Court Martial trial; and

(c) at a time after the giving of the opportunity to elect, the commanding officer obtains extended powers for the purposes of any provision of section 133, 134, 135 or 194.

(8) The provisions of this section requiring the giving of an opportunity to elect Court Martial trial of the charge shall apply again.

Further consequences of election for Court Martial trial

130

(1) This section applies where the accused has elected Court Martial trial of a charge.

(2) The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused refer to a commanding officer, under section 125(2)(e)—

(a) that charge (whether or not amended by the Director), or

(b) any charge substituted under section 125(2)(b) or additionally brought under section 125(2)(c).

(3) Where a charge mentioned in subsection (2) is referred under section 125(2)(e), the accused may not elect Court Martial trial of the charge (and accordingly section 129(1) does not apply in respect of the charge); but this does not apply —

(a) where the charge is amended after referral;

(b) to any charge substituted for or added to the charge after referral; or

Summary hearing

131

(1) This section applies where a commanding officer hears a charge summarily.

(2) The commanding officer may dismiss the charge at any stage of the hearing; but this is subject to subsection (4) and to any provision of rules under section 153.

(3) If the commanding officer determines that the charge has not been proved, he must dismiss the charge.

(4) If the commanding officer determines that the charge has been proved, he must—

(a) record a finding that the charge has been proved; and

(b) award one or more of the punishments authorised by section 132.

(5) Where the commanding officer records findings that two or more charges against a person have been proved, the award he must make under subsection (4) is a single award (consisting of one or more of those punishments) in respect of the charges taken together.

(6) Nothing in this section authorises a commanding officer to include in an award two or more punishments within the same row of the Table in section 132, except where those punishments are—

(a) different minor punishments which regulations made under row 7 of the Table permit to be awarded together; or

(b) service compensation orders.

Punishments available to commanding officer

132

(1) The second column of the following Table lists the punishments that may be awarded by a commanding officer who has heard a charge summarily, subject in the case of each punishment to any limitation shown in the third column opposite it.

Row Number	Punishment	Limitation
1	detention for a term not exceeding the maximum allowed by section 133	only if the person being punished is of or below the rank of—leading rate; corporal in the Royal Marines; lance corporal or lance bombardier in any of Her Majesty’s military forces;corporal in any of Her Majesty's air forces (see also subsection (1A))
2	forfeiture of a specified term of seniority or of all seniority	only if the person being punished is an officer, and only in accordance with section 134
3	reduction in rank, or disrating	only if the person being punished is a warrant officer or non-commissioned officer, only in accordance with section 135, and not to an extent prohibited by regulations under section 135(4)
4	a fine not exceeding the maximum amount allowed by section 136
5	a severe reprimand or a reprimand	only if the person being punished is an officer, warrant officer or non-commissioned officer
6	a service supervision and punishment order (defined by section 173)	only if the person being punished is an able rate, marine, soldier or airman
7	such minor punishments as may from time to time be authorised by regulations made by the Defence Council
8	a service compensation order (defined by section 175) of an amount not exceeding the maximum allowed by section 137
9	a deprivation order (defined by section 177B)	only if section 177C permits

(1A) In row 1 of the Table, in paragraph (c) of the entry in the third column, in relation to the Royal Air Force Regiment, the reference to a corporal is to be read as a reference to a lance corporal.

(2) Subsection (1) is subject to (in particular)—

(a) section 138 (prohibited combinations of punishments) and any regulations made under that section;

(b) Chapter 1 of Part 9 (general provisions about sentencing).

(3) Where regulations under row 7 of the Table authorise a minor punishment, they may—

(a) confer on the offender's commanding officer a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;

(b) confer on the offender's commanding officer the function of deciding the details of the punishment;

Detention: limits on powers

133

(1) The maximum term of detention that a commanding officer may award under row 1 of the Table in section 132 to an able rate, marine, soldier or airman is—

(a) 90 days if the commanding officer has extended powers for the purposes of this subsection;

(b) otherwise, 28 days.

(2) A commanding officer may not award detention under row 1 of the Table in section 132 to a person of any of the following ranks—

(a) leading rate,

(aa) corporal in the Royal Marines;

(b) lance corporal or lance bombardier in any of Her Majesty’s military forces,

unless the commanding officer has extended powers for the purposes of this subsection; and the maximum term of detention that a commanding officer may (if he has those powers) award such a person is 90 days.

(2A) In relation to the Royal Air Force Regiment, the reference in subsection (2)(c) to a corporal is to be read as a reference to a lance corporal.

(3) A commanding officer has extended powers for the purposes of subsection (1) or (2) if he has, within the relevant time (defined by section 135A) —

(a) applied to higher authority for extended powers for the purposes of that subsection; and

(b) been notified by higher authority that his application has been granted.

(4) A commanding officer also has extended powers for the purposes of subsection (1) or (2) if he is of or above the rank of rear admiral, major-general or air vice-marshal.

Forfeiture of seniority: requirement for approval

134

(1) A commanding officer may not award forfeiture of seniority under row 2 of the Table in section 132 unless he has extended powers for the purposes of this section.

(2) A commanding officer has extended powers for the purposes of this section if he has, within the relevant time (defined by section 135A) —

(a) applied to higher authority for extended powers for the purposes of this section; 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 this section if he is of or above the rank of rear admiral, major-general or air vice-marshal.

Reduction in rank: limits on powers

135

(1) A commanding officer may not award reduction in rank, or disrating, under row 3 of the Table in section 132 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.

(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.

(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) or (b) (as the case may be) is reduction to the highest rank the person has held in that force as an airman; but this is subject to subsection (3A).

(3A) In relation to the Royal Air Force Regiment, the reference in subsection (3) to a corporal is to be read as a reference to a lance corporal.

(4) The Defence Council may by regulations provide that persons of a trade or branch specified in the regulations may not be reduced or disrated under section 132 below a rank or rate so specified.

(5) A commanding officer has extended powers for the purposes of subsection (1) if he has, within the relevant time (defined by section 135A) —

(a) applied to higher authority for extended powers for the purposes of 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.

Fine: maximum amount

136

(1) The maximum amount of a fine that a commanding officer may award is 28 days' pay.

(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;

(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 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).

Service compensation orders: maximum amount

137

(1) Where an award by a commanding officer consists of or includes one service 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.

(3) If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum for the time being specified in subsections (1) and (2) such other sum as appears to him justified by the change.

(4) In subsection (3) “the relevant date” means—

(a) the date of the coming into force of this section; or

(b) where the sum for the time being specified in subsections (1) and (2) was substituted for a sum previously so specified, the date of the substitution.

Prohibited combinations of punishments

138

(1) Subsections (2) to (6) apply where a commanding officer awards punishment in respect of an offender.

(2) If he awards detention, the only additional punishments he may award are—

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

(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.

(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 punishment order.

(7) Regulations under row 7 of the Table in section 132 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.

(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.

Savings for maximum penalties for offences

139

(1) Where a commanding officer awards punishment in respect of a single offence, nothing in sections 131 to 138 authorises him—

(a) to award a punishment of a kind which the Court Martial could not award for that offence;

(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 131 to 138 authorises him to award a punishment of 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 136 exceeds the permitted maximum, nothing in sections 131 to 138 authorises him to award a fine exceeding the permitted 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 — The Summary Appeal Court

The Summary Appeal Court

140

(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.

Right of appeal

141

(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 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 the end of the initial period.

(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.

Constitution of the SAC for appeals

142

(1) For the purpose of hearing an appeal under section 141, the Summary Appeal Court is to consist of—

(a) a judge advocate;

(b) an officer qualified for membership under section 143 and not ineligible by virtue of section 144; and

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

(3) The judge advocate for an appeal under section 141 is to be specified by or on behalf of the Judge Advocate General.

(4) The other members of the court for an appeal under section 141 are to be specified by or on behalf of the court administration officer.

Officers and warrant officers qualified for membership of the SAC

143

(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.

(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 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;

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

(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 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 Court of Judicature of Northern Ireland; or

(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;

(b) the Isle of Man;

(d) a British overseas territory.

Officers and warrant officers ineligible for membership in particular circumstances

144

(1) An officer is ineligible for membership of the Summary Appeal Court for the hearing of an appeal under section 141 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 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 summary hearing for permission under section 54 or for extended powers for the purposes of any provision of section 133, 134, 135, 136 or 194;

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

(e) he serves under the command of the officer who conducted the 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 for the hearing of an appeal under section 141 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.

(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.

Open court

145

Subject to any provision made by SAC rules, the Summary Appeal Court must sit in open court.

Hearing of appeals

146

(1) An appeal under section 141 against a finding is to be by way of—

(a) a rehearing of the charge; and

(b) except where section 147(2) applies, a rehearing as respects punishment.

(2) An appeal under section 141 against punishment is to be by way of a rehearing as respects punishment.

(3) In the case of the hearing of an appeal under section 141, 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.

Powers of the SAC

147

(1) At a rehearing of a charge by virtue of section 146(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.

(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 146(1)(b) or (2), the Summary Appeal Court may—

(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

(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).

(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.

Effect of substituted punishment

148

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

(a) if the court makes a direction under section 189(3), in accordance with the direction;

(b) otherwise, from the beginning of the day on which the punishment is substituted.

Making of, and appeals from, decisions of the SAC

149

(1) Subject to section 146(3), any decision of the Summary Appeal Court when constituted as mentioned in section 142(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 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.

Privileges of witnesses and others

150

A witness before the Summary Appeal Court or any other person whose duty 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.

SAC rules

151

(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.

(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;

(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 other persons;

(b) as to objections to, and the replacement of, members of the court;

(d) for such powers of the court as may be prescribed by the rules to be 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 court;

(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;

(ga) in relation to cases where the court has awarded or confirmed a punishment at a rehearing and it appears to the court that it had no power to do so, enabling the court to substitute for the (purported) award or confirmation of the punishment a decision that the court would have had power to make at the rehearing;

(h) for the discharge of a court (including provision as to rehearings following discharge);

(i) as to notifications and references under section 152;

(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;

(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 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;

(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).

(5A) Rules made by virtue of subsection (3)(ga) may make provision about the commencement of punishments varied by the court.

(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 141.

Chapter 3 — Review of Summary Findings and Punishments

Review of summary findings and punishments

152

(1) Where—

(a) a charge has been heard summarily, and

(b) a finding that the charge has been proved has been recorded,

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.

(2A) Subsection (2B) applies where—

(a) a review has been carried out under this section in respect of a punishment,

(b) the person to whom the review relates has not brought an appeal under section 141 within the period provided by subsection (2) of that section, and

(c) the person who carried out the review considers there may be grounds for varying or rescinding the punishment, pursuant to rules made by virtue of section 153(1A).

(2B) The person who carried out the review may refer the punishment back to the commanding officer who awarded it to consider whether to exercise the power to vary or rescind the punishment pursuant to those rules.

(2C) Where subsection (2B) applies, that does not prevent the person who carried out the review from making a referral under subsection (4)—

(a) as an alternative to making a referral under subsection (2B), or

(b) after making a referral under subsection (2B), where the commanding officer has declined to exercise the power to vary or rescind the punishment.

(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 141 within the period provided by subsection (2) of that section.

(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 or punishment; and

(b) the person to whom the review relates has brought an appeal under section 141.

(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 court,

he may notify the court of that matter.

(7) If—

(a) the Summary Appeal Court has 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 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 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 141 brought by the person to whom the finding or punishment relates against the finding or punishment.

Chapter 4 — Summary Hearings etc Rules

Summary hearings etc rules

153

(1) The Secretary of State may by rules make provision with respect to—

(a) the summary hearing of charges by commanding officers;

(b) hearings as regards the making of orders under section 193 (activation of suspended sentence of service detention).

(1A) Without prejudice to the generality of subsection (1), the Secretary of State may by rules make provision with respect to the variation or rescission by a commanding officer of—

(a) a punishment awarded by the officer, or

(b) an order under section 193 made by the officer,

in cases where it appears to the officer that the officer had no power to award the punishment or (as the case may be) to make the order.

(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;

(d) as to applications for , and grants of, extended powers;

(e) as to applications for , and grants of, permission to hear summarily charges of a kind mentioned in section 54;

(f) requiring prescribed persons to be notified of prescribed matters.

(2A) Rules made under subsection (1A) may make provision about the commencement of punishments or orders varied by the commanding officer.

(3) In subsection (2) “prescribed” means prescribed by rules under this section.

(a) “prescribed” means prescribed by rules under this section

(b) references to hearings include any proceedings for determining whether a punishment, or an order under section 193, should be varied or rescinded.

Part 7 — Trial by Court Martial

Chapter 1 — The Court Martial

The Court Martial

154

(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.

Constitution of the Court Martial

155

(1) In the case of any proceedings, the Court Martial is to consist of—

(a) a judge advocate; and

(b) three or, in the case of proceedings of a prescribed description, six other persons (“lay members”).

(2) But Court Martial rules may provide that, in the case of proceedings of a prescribed description, there are to be—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) no lay members.

(2A) In the case of proceedings where the number of lay members would (but for this subsection) be three, a judge advocate may, in accordance with Court Martial rules, direct that the number of lay members is to be four.

(3) In the case of proceedings where the Court Martial consists of a judge advocate and lay members—

(a) a prescribed number of the lay members must be officers , warrant officers or OR-7 ranks qualified for membership under section 156 and not ineligible by virtue of section 157; and

(b) the rest must be officers so qualified and not so ineligible.

(4) Subsection (3) is subject to any provision made by Court Martial rules.

(5) The judge advocate for any proceedings is to be specified by or on behalf of the Judge Advocate General.

(6) The lay members for any proceedings are to be specified by or on behalf of the court administration officer.

(6A) Court Martial rules may provide that in prescribed circumstances the Court Martial is to remain validly constituted despite the reduction of the number of lay members—

(a) from six to five, or

(b) where a direction has been made under subsection (2A), from four to three,

if a judge advocate gives a direction to that effect.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) In this section—

“OR-7 rank” means any of the following—chief petty officer;staff corporal;staff sergeant;colour sergeant, Royal Marines;flight sergeant;chief technician;

“prescribed” means prescribed by Court Martial rules.

Officers and warrant officers qualified for membership of the Court Martial

156

(1) Subject to subsections (2) to (4), an officer , warrant officer or OR-7 rank is qualified for membership of the Court Martial if he is subject to service law.

(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 in any of those forces.

(3) A warrant officer is not qualified for membership of the court if he is an acting warrant officer.

(3A) An OR-7 rank is not qualified for membership of the court if that person is an acting—

(a) chief petty officer,

(b) staff corporal,

(d) colour sergeant, Royal Marines,

(e) flight sergeant, or

(f) chief technician.

(4) An officer , warrant officer or OR-7 rank is not qualified for membership of the court if—

(a) he is a member of the Military Court Service;

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

(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 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 Court of Judicature of Northern Ireland; or

(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;

(b) the Isle of Man;

(d) a British overseas territory.

(6) In this section “OR-7 rank” has the meaning given by section 155(9).

Officers and warrant officers ineligible for membership in particular circumstances

157

(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;

(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 or OR-7 rank is ineligible for membership of the Court Martial for 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.

(4) Court Martial rules may provide that an officer , warrant officer or OR-7 rank of a description prescribed by the rules is ineligible for membership of the Court Martial for a description of proceedings so prescribed.

(5) In this section “OR-7 rank” has the meaning given by section 155(9).

Chapter 2 — Court Martial Proceedings

Open court

158

Subject to any provision made by Court Martial rules, the Court Martial must sit in open court.

Rulings and directions

159

(1) In the case of proceedings where the Court Martial consists of a judge advocate and other persons, rulings and directions on questions of law, procedure or practice are to be given by the judge advocate.

(2) Any rulings or directions given under subsection (1) are binding on the court.

Decisions of Court Martial: finding and sentence

160

(A1) The finding of the Court Martial on a charge must be determined by votes of the members of the Court Martial other than the judge advocate (the “lay members”) and—

(a) where there are three lay members, must be a finding with which no fewer than two of them agree;

(b) where there are four lay members, must be a finding with which no fewer than three of them agree;

(d) where there are six lay members, must be a finding with which no fewer than five of them agree.

(1) Subject to subsection (4), any sentence passed by the Court Martial must be determined by a majority of the votes of the members of the court.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In the case of an equality of votes on the sentence, the judge advocate has a casting vote.

Power of Court Martial to convict of offence other than that charged

161

(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.

(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 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 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).

Privileges of witnesses and others

162

A witness before the Court Martial or any other person whose duty 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.

Court Martial rules

163

(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.

(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;

(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—

(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;

(d) for such powers of the court as may be prescribed by the rules to be 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 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;

(h) for the variation by the court of a sentence passed by it or the variation or rescission by it of an order made by it;

(i) for appeals—

(i) against any orders (including directions) of the court prohibiting or restricting the publication of any matter or excluding the public from any proceedings (whether made in preliminary proceedings or otherwise);

(ii) against any other orders or rulings made in proceedings preliminary to a trial;

(j) for the discharge of a court (including provision as to retrials and rehearings following discharge);

(k) 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;

(l) for the making and retention of records of the proceedings of the court;

(m) for the supply of copies of such records, including provision about the fees payable for the supply of such copies;

(n) conferring functions in relation to the court on the court administration officer;

(o) 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 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;

(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).

(6) Court Martial rules must secure that, after arraignment, charges may not be amended—

(a) in circumstances substantially different from those in which indictments are amendable by the Crown Court; or

(b) otherwise than subject to conditions which correspond, as nearly as circumstances permit, to those subject to which indictments are so amendable.

(7) Rules made by virtue of subsection (3)(h) may make provision about the commencement of sentences or orders varied by the court (including provision conferring on the court a power to direct that a sentence shall take effect otherwise than as mentioned in section 289(1)).

(8) Court Martial 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.

(9) Rules made by virtue of paragraph (i) of subsection (3) may confer jurisdiction on the Court Martial Appeal Court, and rules under section 49 of the Court Martial Appeals Act 1968 may make provision about the powers of that court in relation to appeals made by virtue of that paragraph.

Chapter 3 — Punishments Available to Court Martial

Punishments available to Court Martial

164

(1) The second column of the following Table lists the punishments that may be awarded by sentence of the Court Martial, subject in the case of each punishment to any limitation shown in the third column opposite it.

Row Number	Punishment	Limitation
1	imprisonment
2	dismissal with disgrace from Her Majesty's service
3	dismissal from Her Majesty's service
4	detention for a term not exceeding two years	not if the person being sentenced is an officer
5	forfeiture of a specified term of seniority or of all seniority	only if the person being sentenced is an officer
6	reduction in rank, or disrating	only if the person being sentenced is a warrant officer or non-commissioned officer, and not to an extent prohibited by regulations under subsection (4)
7	a fine
8	a service community order (defined by section 178)	only if the person being sentenced is on the same occasion sentenced to dismissal or dismissal with disgrace and subsection (5) permits
9	a severe reprimand or a reprimand	only if the person being sentenced is an officer, warrant officer or non-commissioned officer
10	a service supervision and punishment order (defined by section 173)	only if the person being sentenced is an able rate, marine, soldier or airman
11	such minor punishments as may from time to time be authorised by regulations made by the Defence Council
12	a service compensation order (defined by section 175)
13	a deprivation order (defined by section 177B)	only if section 177C permits
14	a driving disqualification order (defined by section 177G)	only if subsection (5A) permits

(2) Where this Act provides that a person guilty of a particular offence is liable to any punishment mentioned in the Table or in specified rows of the Table, it means he is liable to any one or more of the punishments so mentioned (subject in the case of each one to any limitation shown in the third column opposite it).

(3) The previous provisions of this section are subject to (in particular)—

Chapters 4 to 6 of Part 8 (imprisonment for two years or less, young offenders' custodial sentences, and mandatory etc sentences for serious offences); ...

Part 9 (general provisions about sentencing); and

Schedule 3A (offender elected Court Martial trial).

(4) The Defence Council may by regulations restrict the extent to which persons of a description specified in the regulations may be reduced in rank or disrated under this section.

(5) The court may not make a service community order unless—

(a) the offender is aged 18 or over when convicted; and

(b) it appears to the court that he will reside in the United Kingdom when the order is in force.

(5A) The court may not make a driving disqualification order unless—

(a) the offence was committed on or after the commencement of section 15 of the Armed Forces Act 2021, and

(b) the court has been notified by the Secretary of State that the power to make such orders is exercisable by the court (and the notice has not been withdrawn).

(6) Where regulations under row 11 of the Table authorise a minor punishment, they may—

(a) confer on the Court Martial a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;

(b) confer on the offender's commanding officer the function of deciding the details of the punishment;

(7) This section is modified in relation to certain offenders by Schedule 3 (civilians etc).

Sentencing powers of Court Martial where election for trial by that court instead of CO

165

Schedule 3A (sentencing powers of Court Martial where election for trial by that court instead of CO) has effect.

Chapter 4 — Findings of Unfitness to Stand Trial and Insanity

Fitness to stand trial

166

(1) This section applies where on a trial by the Court Martial the question arises (at the instance of the defence or otherwise) whether the defendant is fit to stand trial.

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