The Armed Forces (Service Civilian Court) Rules 2009

• (b) if it provides for that special measure to so apply, the witness is still under the age of 18 when the video recording is made for the purposes of section 28;

then, so far as it provides as mentioned in sub-paragraph (a)(i) or (ii) above, the direction shall continue to have effect even though the witness subsequently attains that age.

• (9) In this rule—

• (a) a witness is a “child witness” if the witness is an eligible witness by reason of rule 75(1) (whether or not the witness is an eligible witness by reason of any other provision of rule 75 or 76); and

• (b) a “relevant recording”, in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

Extension of provisions of rule 78A to certain witnesses over 18

78B

• (1) Rule 78(1) and 78A(1) to (3) and (6), so far as relating to the giving of a direction complying with the requirement contained in rule 78A(2), apply to a qualifying witness in respect of a relevant recording made in relation to the witness, as they apply to a child witness (within the meaning of rule 78A).

• (2) In this rule—

• (a) a witness (other than the defendant) is a “qualifying witness” if the witness—

• (i) is not an eligible witness, but

• (ii) was under the age of 18 when the relevant recording was made in relation to the witness; and

• (b) a “relevant recording”, in relation to a witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

Evidence given in private

Video recorded evidence in chief

Video recorded cross-examination or re-examination

80A

• (1) Where a special measures direction provides for a video recording to be admitted under section 28 of the 1999 Act (video recorded cross-examination or re-examination), such a recording must be made in the presence of such persons as the direction may provide and in the absence of the defendant, but in circumstances in which—

• (a) the court and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made; and

• (b) the defendant is able to see and hear any such examination and to communicate with any legal representative acting for the defendant (and for this purpose any impairment of eyesight or hearing is to be disregarded).

• (2) Where two or more legal representatives are acting for a party to the proceedings, paragraph (1)(a) and (b) are to be regarded as satisfied in relation to those representatives if at all material times they are satisfied in relation to at least one of them.

• (3) Where a special measures direction provides for a recording to be admitted under section 28 of the 1999 Act, the court may nevertheless subsequently direct that it is not to be so admitted if any requirement of paragraph (1), these Rules or the direction has not been complied with to the satisfaction of the court.

• (4) Where in pursuance of section 28(1) of the 1999 Act a recording has been made of any examination of the witness, the witness may not be subsequently cross-examined or re-examined in respect of any evidence given by the witness in the proceedings (whether in any recording admissible under section 27 (video recorded examination in chief) or 28 of the 1999 Act or otherwise than in such a recording) unless the court gives a further special measures direction making such provision as is mentioned in section 28(1)(a) and (b) of the 1999 Act in relation to any subsequent cross-examination, and re-examination, of the witness.

• (5) The court may only give such a further direction if it appears to the court—

• (a) that the proposed cross-examination is sought by a party to the proceedings as a result of that party having become aware, since the time when the original recording was made in pursuance of section 28(1) of the 1999 Act, of a matter which that party could not with reasonable diligence have ascertained by then; or

• (b) that for any other reason it is in the interests of justice to give further direction.

• (6) Nothing in this rule shall be read as applying in relation to any cross-examination of the witness by the defendant in person (in a case where the defendant is to be able to conduct any such cross-examination).

Examination of witness through intermediary

Application for special measures direction: general

Application for special measures direction permitting admission of video recorded evidence in chief

Variation or discharge of special measures direction

PART 1A — THE OVERRIDING OBJECTIVE

The overriding objective

3A

• (1) The overriding objective of these Rules is that cases be dealt with justly.

• (2) Dealing with a case justly includes—

• (a) acquitting the innocent and convicting the guilty;

• (b) treating all participants with politeness and respect;

• (c) dealing with the prosecution and defence fairly;

• (d) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

• (e) respecting the interests of witnesses and victims and keeping them informed of the progress of the case;

• (f) dealing with the case efficiently and expeditiously;

• (g) ensuring that appropriate information is available to a judge advocate or the court when either custody before or after charge or sentence are considered; and

• (h) dealing with the case in ways that take into account—

• (i) the gravity of the offence alleged;

• (ii) the complexity of what is in issue;

• (iii) the severity of the consequences for the defendant and others affected;

• (iv) the needs of other cases; and

• (v) the need to maintain the operational effectiveness of Her Majesty’s forces.

• (3) In this rule “custody before or after charge” means the keeping of the accused in service custody under Part 4 of the 2006 Act.

The duty of the participants in a case

3B

• (1) Each participant, in the conduct of each case, must—

• (a) prepare and conduct the case in accordance with the overriding objective;

• (b) comply with these Rules and any directions relating to the case given by a judge advocate or the court;

• (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules or any direction. A failure is significant if it might hinder the court in furthering the overriding objective.

• (2) Anyone involved in any way with a case is a participant in its conduct for the purposes of this rule.

The application by the court of the overriding objective

3C

The court or the judge advocate for any proceedings before the court must further the overriding objective, in particular when—

• (a) exercising any power given to the court or the judge advocate by legislation (including these Rules); or

• (b) interpreting any rule.

CHAPTER 3 — Driving Disqualification Orders

Application to remove a disqualification

108A

• (1) This rule applies where under regulation 8 of the Armed Forces (Driving Disqualification Orders) Regulations 2023 (the “Driving Disqualification Order Regulations”), on application by the offender, the court can remove a driving disqualification order.

• (2) An offender who wants the court to exercise that power must—

• (a) apply in writing, no earlier than the date prescribed by regulation 8(4) of the Driving Disqualification Order Regulations,

• (b) serve the application on the court administration officer,

• (c) in the application set out—

• (i) the date on which the driving disqualification order was made and the disqualification period,

• (ii) the offence for which it was imposed, and

• (iii) the reasons the offender seeks removal of the driving disqualification order.

• (3) The court administration officer must serve a copy of the application on the Director.

• (4) A hearing must be held to determine the application.

Information to be supplied on order for disqualification, etc.

108B

• (1) This rule applies where the court—

• (a) disqualifies the offender from driving, or

• (b) suspends or removes a driving disqualification order.

• (2) The court administration officer must, as soon as reasonably practicable, serve on the Secretary of State notice that includes details of—

• (a) where paragraph (1)(a) applies—

• (i) the date on which the driving disqualification order was made and the disqualification period;

• (ii) the power exercised by the court;

• (b) where paragraph (1)(b) applies—

• (i) the date on which the driving disqualification order was made and the disqualification period;

• (ii) the date and terms of the order for its suspension or removal;

• (iii) the power exercised by the court;

• (iv) where the court suspends the disqualification pending appeal, the court to which the offender has appealed.

Part 14A — Variation Proceedings

Application of Part 14A

99A

This Part applies where, on or after 13th November 2023, the court has imposed a sentence.

Interpretation of Part 14A

99B

In this Part—

• “original sentence” means a sentence imposed in the course of sentencing proceedings;

• “varied sentence” means a sentence substituted for the original sentence in accordance with this Part.

Power to vary sentence

99C

• (1) The court may vary or rescind the original sentence if it appears to the court that it had no power to impose the original sentence.

• (2) The power conferred by this rule—

• (a) may be exercised within the period of 56 days beginning with the day on which the original sentence was imposed;

• (b) may not be exercised in relation to any sentence if an appeal, or an application for leave to appeal, against the sentence has been determined.

• (3) Unless the court otherwise orders, a varied sentence takes effect from the beginning of the day on which the original sentence was imposed.

Direction that variation proceedings be held

99D

• (1) Variation proceedings may be held only in accordance with a direction given under this rule.

• (2) After conclusion of any proceedings in which an original sentence was imposed, the judge advocate for those proceedings may direct the court administration officer to appoint a time and place for variation proceedings in respect of the sentence.

• (3) The judge advocate may give a direction under this rule—

• (a) on the application of the Director or the offender, or

• (b) of their own motion.

• (4) An application for a direction under this rule—

• (a) must be made in writing to the court administration officer, stating the grounds on which it is made, and

• (b) if made by the Director, must be served on the offender, or

• (c) if made by the offender, must be served on the Director.

• (5) Where the judge advocate dismisses an application for a direction under this rule, the court administration officer must notify the Director and the offender of that fact.

Announcement of varied sentence

99E

Where the court varies the original sentence, rule 99 (pronouncement of sentence) and sections 252 (duty to give reasons and explain sentence) and 253(2) (duties in complying with section 252) of the Act apply as they apply to the passing of a sentence.

Power to order offender’s release from custody

99F

• (1) This rule applies where an offender is in custody by virtue of an original sentence made by the court.

• (2) The judge advocate may order that the offender be released immediately if, within the period of 56 days beginning on the day which the original sentence was imposed, it appears to the judge advocate that—

• (a) the court had no power to impose such a sentence, or

• (b) the maximum term for which the court had power to award such a sentence has expired.

• (3) The power conferred by this rule may not be exercised in relation to any sentence if an appeal, or an application for leave to appeal, against the sentence has been determined.

• (4) This rule is without prejudice to any other provision in this Part.