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The Armed Forces (Summary Appeal Court) Rules 2009

Type Statutory-Instrument

Publication 2009-05-07

Last updated 2023-11-13

State In force

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The provisions of this Part apply in relation to any proceedings in which an issue of fact falls to be determined, unless otherwise stated.

59

(1) The rules of evidence applicable in a trial on indictment in England and Wales shall apply, to the extent that they—

(a) are capable of applying; and

(b) are not applied, with or without modifications, by any other enactment or subordinate legislation (whenever passed or made).

(2) In this rule, “rules of evidence” includes rules conferring or restricting any discretion to exclude admissible evidence.

(3) No person may be required—

(a) to answer any question which he could not be required to answer in a trial on indictment in England and Wales; or

(b) to produce any document which he could not be required to produce in such a trial.

(4) The court may take judicial notice of—

(a) matters of which judicial notice could be taken in a trial on indictment in England and Wales; and

(b) matters within the general service knowledge of the court.

60

(1) Oral testimony shall be given on oath.

(2) This rule is subject to section 5 of the Oaths Act 1978 (affirmation);

61

(1) Without prejudice to rule 59, section 9 of the 1967 Act (proof by written statement) shall apply, as modified by paragraph (2), in relation to a statement made—

(a) in the United Kingdom by any person, or

(b) outside the United Kingdom by a person subject to service law or a civilian subject to service discipline,

as it applies in criminal proceedings in relation to a statement made in the United Kingdom.

(2) In its application by virtue of this rule, section 9 of the 1967 Act shall have effect as if—

(a) subsection (2)(c) required service of the statement on the court administration officer (as well as each of the other parties to the proceedings);

(b) in subsection (2)(d), the reference to the parties' solicitors were to their legal representatives;

(d) in subsection (6), the references to the court were to the judge advocate.

(3) An application to the court under section 9(4)(b) of the 1967 Act—

(a) may be made in preliminary proceedings; and

(b) if made in appeal proceedings, shall be determined by the judge advocate.

(4) Section 89 of the 1967 Act (offence of making a false statement tendered in evidence) shall apply in relation to a statement tendered in evidence in proceedings of the court by virtue of section 9 of that Act, wherever made, as it applies in relation to a statement tendered in evidence in criminal proceedings by virtue of that section.

62

(1) Without prejudice to rule 59, section 10 of the 1967 Act (proof by formal admission) shall apply, as modified by paragraph (2), as it applies in relation to criminal proceedings.

(2) In its application by virtue of this rule, section 10 of the 1967 Act shall have effect as if—

(a) in subsection (1), the reference to the prosecutor were to the Director; and

(b) in subsection (2), references to an appellant's counsel or solicitor were to his legal representative.

63

(1) A person giving oral evidence about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if—

(a) he states in his oral evidence that the document records his recollection of that matter at that earlier time; and

(b) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.

(2) Where—

(a) a person giving oral evidence about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at that time,

(b) his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and

he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.

64

(1) Where, in appeal proceedings—

(a) the Director intends to adduce evidence of an appellant's bad character, or

(b) an appellant intends to adduce evidence of another appellant's bad character, or to cross-examine a witness with a view to eliciting such evidence,

he must serve on the court administration officer and all other parties to the proceedings a notice of that intention.

(2) A notice under this rule—

(a) must describe the misconduct to which the evidence relates;

(b) must state what evidence of the misconduct the party serving the notice intends to adduce or elicit;

(d) identify the paragraph or paragraphs of section 101(1) of the 2003 Act which the party serving the notice asserts to be applicable to the evidence.

(3) If served by the Director, a notice under this rule must be served not more than 14 days after the Director serves advance information in respect of the appeal to which the evidence relates.

(4) If served by an appellant, a notice under this rule must be served not more than 14 days after—

(a) the date on which the Director complies or purports to comply with article 4 of the CPIA Order; or,

(b) if later, the date on which the Director discloses to the appellant the previous convictions of the co-appellant to whose misconduct the notice relates.

(5) If it is not reasonably practicable to serve a notice under this rule within the time prescribed by paragraph (3) or (4) (as the case may be), the notice must be served as soon as it is reasonably practicable to do so.

(6) The court may dispense with the requirement to serve a notice under this rule if satisfied that no injustice would result.

65

(1) An application under section 101(3) of the 2003 Act to exclude evidence of an appellant's bad character in appeal proceedings must be made in writing to the court administration officer and served on all other parties to the proceedings, unless a judge advocate gives leave for the application to be made orally.

(2) If made in writing, the application—

(a) must state whether a notice under rule 64 has been served on the applicant in relation to the evidence, and if so on what date; and

(b) must be made and served not more than 14 days after that date (if any), unless paragraph (3) applies.

(3) Where—

(a) the court dispenses with the requirement to serve a notice under rule 64, or

(b) such a notice is served but it is not reasonably practicable to make the application within 14 days of the service of the notice,

the application must be made as soon as is reasonably practicable.

66

(1) An application for leave to give evidence in appeal proceedings of the bad character of a person other than an appellant must be made in writing to the court administration officer and served on all other parties to the proceedings, unless a judge advocate gives leave for the application to be made orally.

(2) If made in writing, such an application—

(a) must describe the misconduct to which the evidence relates;

(b) must state what evidence of the misconduct the applicant seeks to adduce or elicit;

(d) must state the grounds on which the applicant asserts that the evidence is admissible.

(3) If made by the Director, an application under this rule must be made not more than 14 days after the Director serves advance information in respect of the appeal to which the evidence relates.

(4) If made by an appellant, an application under this rule must be made not more than 14 days after—

(a) the date on which the Director complies or purports to comply with article 4 of the CPIA Order; or,

(b) if later, the date on which the Director discloses to the appellant the previous convictions of the person to whose misconduct the application relates.

(5) If it is not reasonably practicable to make an application under this rule within the time prescribed by paragraph (3) or (4) (as the case may be), the application must be made as soon as it is reasonably practicable to do so.

67

(1) Where a party to appeal proceedings proposes to adduce a hearsay statement, or (in the case of an appellant) to cross-examine a witness with a view to eliciting evidence of such a statement, on the basis that the statement is admissible by virtue of—

(a) section 114(1)(d) of the 2003 Act (interests of justice),

(b) section 116 of that Act (maker of statement unavailable to give oral evidence), or

he must serve on the court administration officer and all other parties to the proceedings a notice to that effect.

(2) A notice under this rule—

(a) must give details of the statement that the party serving the notice proposes to tender in evidence;

(b) where the statement is contained in a document which has not already been served on all the other parties, must include a copy of the document;

(c) where the notice is served by the Director and oral evidence of the statement is to be given, must identify any witness who is to give it;

(d) must specify whether the party serving the notice proposes to tender the statement by virtue of section 114(1)(d), 116 or 117 of the 2003 Act;

(e) where he proposes to tender the statement by virtue of section 114(1)(d) of that Act, must specify which of the factors mentioned in section 114(2) of that Act he considers to be relevant, and how they are relevant; and

(f) where the statement is evidence that an earlier hearsay statement was made, must specify whether he proposes to tender it by virtue of section 121(1)(a), (b) or (c) of that Act.

(3) Where a notice under this rule is served by the Director, it must be served not more than 14 days after the Director serves advance information in respect of the appeal to which the evidence relates.

(4) Where a notice under this rule is served by an appellant, it must be served not more than 14 days after the Director complies or purports to comply with article 4 of the CPIA Order.

(5) Where—

(a) a notice has been served under this rule in relation to a hearsay statement, and

(b) no counter-notice has been served in accordance with rule 68 in relation to the statement,

the statement is to be treated as admissible by agreement of the parties.

(6) In this rule “hearsay statement” means a statement which—

(a) is not made in oral evidence in the proceedings; and

(b) is relied on as evidence of a matter stated in it.

68

(1) Where a party serves a notice under rule 67 in relation to a statement, any other party may serve a counter-notice objecting to the admission of the statement.

(2) A counter-notice served under this rule must state—

(a) the date on which the party serving it was served with the notice under rule 67;

(b) whether he objects to the admission of the whole or only part of the statement, and if only part which part; and

(3) A counter-notice served under this rule must be served on the court administration officer and all other parties to the proceedings not more than 14 days after service of the notice under rule 67.

69

(1) A document purporting to be an enlistment paper used to enlist a person in accordance with regulations made under section 328 shall be evidence that—

(a) that person was enlisted, on the date on which the declaration in the enlistment paper purports to have been signed by him, and on the terms set out in the document; and

(b) anything recorded in the document as the answer given by him to a question in the document was given by him in answer to that question when it was put to him by or on the direction of the recruiting officer who enlisted him.

(2) A document purporting to be a copy of such a document as is mentioned in paragraph (1) and purporting to be certified to be a true copy by a person stated in the certificate to have custody of the document shall be evidence of the matters mentioned in sub-paragraphs (a) and (b) of that paragraph.

70

A document stating that a person—

(a) was or was not serving at any specified time or during any specified period in any part of Her Majesty's forces,

(b) was discharged from any of Her Majesty's forces at or before any specified time,

(d) had at or before any specified time been attached, posted or transferred to any part of Her Majesty's forces,

(e) at any specified time or during any specified period was or was not serving or held or did not hold any rank, rate or appointment in any particular country or place, or

(f) was or was not at any specified time authorised to use or wear any decoration, badge or emblem,

shall, if it purports to be issued by or on behalf of the Defence Council or by a person authorised by them, be evidence of the matters stated in the document.

71

(1) A record purporting to be—

(a) made in any service record in pursuance of any Act or of Queen's Regulations, or otherwise in pursuance of naval, military, or air force duty, and

(b) signed by the commanding officer of the person to whom the record relates or by a person whose duty it was to make or keep the record,

shall be evidence of the matters stated in the record.

(2) A document purporting to be a copy of such a record (including the signature) as is mentioned in paragraph (1) and purporting to be certified to be a true copy by a person stated in the certificate to have custody of the record shall be evidence of the matters stated in the document.

72

(1) A document purporting to be issued by order of the Defence Council and to contain instructions or regulations given or made by the Defence Council shall be evidence of the giving of the instructions or the making of the regulations and their contents.

(2) A certificate purporting to be issued by or on behalf of the Defence Council or by a person authorised by them and stating—

(a) that a decoration of a description specified in, or as annexed to, the certificate is or is not a naval, military or air force decoration, or

(b) that a badge or emblem of a description specified in, or as annexed to, the certificate is or is not one supplied or authorised by the Defence Council,

shall be evidence of the matters stated in the certificate.

73

A certificate purporting to be signed by a person's commanding officer or an officer authorised by the commanding officer to give the certificate, and stating the contents of, or of any part of, standing orders, or other routine orders of a continuing nature, of any of Her Majesty's forces, made for—

(a) any part of Her Majesty's forces,

(b) any area or place, or

shall be evidence of the matters stated in the certificate.

74

(1) Expert evidence shall not be adduced without the leave of the judge advocate unless the party proposing to rely on it has served on every other party and the court administration officer, not less than 14 days before the date appointed for the commencement of the proceedings, a statement of the substance of the expert evidence.

(2) The statement referred to in paragraph (1) must be in writing unless every other party consents to its being made orally.

(3) Where more than one party wishes to introduce expert evidence, the judge advocate may direct the experts to—

(a) discuss the expert issues in the proceedings; and

(b) prepare a statement for the court of the matters on which they agree and disagree, giving their reasons.

(4) Except for the statement prepared under paragraph (3)(b), the content of the discussion under paragraph (3)(a) may not be referred to without the judge advocate's permission.

(5) Where more than one appellant wishes to introduce expert evidence on an issue, the judge advocate may direct that the evidence on that issue is to be given by one expert only.

(6) Where the appellants cannot agree who should be the expert to give evidence under paragraph (5), the judge advocate may—

(a) select the expert from a list prepared or identified by them; or

(b) direct that the expert be selected in such other manner as the judge advocate shall direct.

(7) Where the judge advocate gives a direction under paragraph (5) for a single joint expert to be used, each of the appellants may give instructions to the expert.

(8) When an appellant gives instructions to an expert under paragraph (7) he must, at the same time, send a copy of the instructions to every other appellant.

(9) Where—

(a) a statement has been prepared for the purposes of proceedings, and

(b) the person who prepared the statement had, or may reasonably be supposed to have had, personal knowledge of the matters stated,

a statement served under paragraph (1) may be accompanied by a notice, given for the purposes of section 127 of the 2003 Act (expert evidence: preparatory work), that another person will in evidence given in the proceedings (whether orally or under section 9 of the 1967 Act, as applied by rule 61) base an opinion or inference on the statement.

75

(1) If the appeal is an appeal against finding, and without prejudice to paragraphs (3) and (4), the Director and the appellant may each address the court once with respect to the case against the appellant on the charges being heard by the court.

(2) For the purposes of paragraph (1)—

(a) the Director shall address the court immediately before adducing any evidence; and

(b) the appellant shall address the court immediately after the close of his own case or, where there is more than one appellant, after the close of the case for all of the appellants.

(3) The Director or appellant may with the leave of the court address it at any time during the hearing on any matter relating to the appeal or the charges which are being heard by the court.

(4) The court shall not exercise its powers under section 147(1)(b) to substitute another finding without affording the appellant and the Director the opportunity to address it on the exercise of those powers in the particular case.

76

(1) This rule shall apply when the court has, in accordance with rule 48, decided to hear appeals by more than one appellant at the same time.

(2) The respondent's case on each of the charges before the court shall be put before the case of any of the appellants, and the Director may make only one address in pursuance of rule 75(1).

(3) Before the opening of the respondent's case, the judge advocate shall decide the order which the appellants are to put their case and to address the court in pursuance of rule 75(1).

(4) Where the same legal representative represents two or more appellants, he may make only one address to the court in pursuance of rule 75(1).

(5) The court shall not close to deliberate on its findings until the close of the case for each of the appellants and each of the appellants have had the opportunity to address the court in pursuance of rule 75(1).

77

(1) The judge advocate may question any witness, or put to the witness a question from a lay member.

(2) If it appears to the judge advocate to be in the interests of justice, the court may—

(a) allow the cross-examination or re-examination of a witness to be postponed;

(b) call any witness whom it has not already heard;

(d) permit any party to recall a witness;

(e) permit the Director to call a witness after the close of the case for the respondent; or

(f) permit an appellant to give evidence after calling another witness.

78

(1) Except for an appellant and any expert or character witness, a witness as to fact shall not, except by leave of the judge advocate, be in court while not under examination.

(2) If while a witness is under examination a question arises as to the admissibility of a question or otherwise with regard to the evidence, the judge advocate may direct the witness to withdraw until the question is determined.

(3) The judge advocate may direct any expert or character witness present in court to withdraw if the judge advocate considers his presence undesirable.

(4) For the purposes of this rule a witness is in court if he is able to see and hear the court through a live link.

79

(1) At the close of the case for the respondent an appellant may submit, in respect of any charge, that the Director has failed to establish a case for him to answer.

(2) Without prejudice to the generality of rule 40, the judge advocate shall hear and rule on such a submission in the absence of the lay members.

(3) If such a submission is allowed, the judge advocate shall direct the court to quash the finding.

80

Subject to rule 77(2), where an appellant gives evidence, he must do so before calling any other witness.

81

(1) At any time after the close of the case for the respondent, the court may find an appellant not guilty on a charge.

(2) The court may not make a finding under this rule before the summing-up unless the judge advocate has invited the Director to address the court as to whether such a finding should be made.

82

The finding of the court shall be announced by the judge advocate.

83

This Chapter applies in relation to—

(a) any proceedings where the court has upheld a finding that a charge has been proved;

(b) any proceedings where the court has exercised its power under section 147(1)(b) to substitute for the finding concerned a finding that another charge has been proved; or

84

(1) In the case of an appeal against punishment, where there are disputed facts in the case, the judge advocate may direct that any issue of fact be tried by the court.

(2) The finding of the court on any such issue shall be determined by a majority of the votes of the members of the court.

(3) The finding of the court shall be announced by the judge advocate.

85

(1) Where the court administration officer has arranged for a pre-sentence report to be prepared in advance of the proceedings, he shall serve a copy on the Director and the appellant before the time appointed for the proceedings.

(2) Where the Director has obtained a record of the appellant's previous convictions in advance of the proceedings, he shall serve a copy on the appellant and the court administration officer before the time appointed for the proceedings.

86

(1) Where—

(a) the proceedings are an appeal against punishment, or

(b) previous sentencing proceedings in respect of the appellant were terminated,

the Director shall address the court on the facts of the case.

(2) Where practicable, the Director shall inform the court of—

(a) the appellant's age and rank or rate;

(b) the appellant's service record;

(c) any recognised acts of gallantry or distinguished conduct on the part of the appellant, and any decoration to which he is entitled;

(d) any previous convictions of the appellant for—

(i) service offences,

(ii) offences under the law of any part of the British Islands, or

(iii) relevant offences of which the offender has been convicted by a court outside the British Islands,

any sentence awarded in respect of any such offence, and whether any such conviction is spent for the purposes of the Rehabilitation of Offenders Act 1974 ;

(e) any formal police caution administered to the offender by a constable in England and Wales or Northern Ireland;

(f) the appellant's pay, terminal benefits and future pension entitlements;

(g) whether the commanding officer had extended powers for the purposes of sections 133(1)(a) or (2), 134(1), 135(1) or 136(1)(b); ...

(h) the punishment awarded by the commanding officer ... ; and

(i) any statement of the effect of the offence on the victim, the victim’s family or others.

(3) For the purposes of paragraph (2)(d) an offence is “relevant” if the act that constituted the offence would have constituted an offence under the law of any part of the United Kingdom if it had been done in that part at the time when the Director presents information to the court under this rule.

(4) Where the commanding officer made an activation order under section 193(3) (activation of a suspended sentence of service detention) the Director shall inform the court of that fact, of the previous offence by virtue of which the commanding officer had that power, and of the punishment awarded for that offence.

(5) Where the offender is not subject to service law but has formerly been so subject, paragraph (2) has effect as if—

(a) for the words “and rank or rate” in sub-paragraph (a) there were substituted “and his rank or rate when he last ceased to be subject to service law”; and

(b) before the word “pay” in sub-paragraph (f) there were inserted “employment,”.

87

The appellant may—

(a) call witnesses in mitigation of punishment or as to his character;

(b) produce to the court any document; and

88

(1) The punishment shall be recorded in writing, dated and signed by the judge advocate.

(2) The judge advocate shall pronounce punishment and make the statement of reasons, and give the explanation, required by section 252(1).

(3) In this rule “punishment” has the same meaning as “sentence” in section 252.

89

(1) The court's powers under section 311(2) (certification of contempt of court) may be exercised only at a hearing under this rule.

(2) If so directed by a judge advocate, the court administration officer shall—

(a) appoint a time and place for a hearing under this rule; and

(b) notify the contemnor and the Director of the time and place so appointed.

(3) The contemnor and the Director are entitled to be heard at the hearing.

(4) The contemnor need not attend the hearing, but the court may exercise its powers under section 311(2) in his absence.

(5) In this rule—

“the contemnor” means the person whose offence the court is to consider certifying; and

“offence” has the same meaning as in section 311.

90

(1) A judge advocate may order that any proceedings, or any part of any proceedings, be held in camera, if satisfied that the order is necessary or expedient in the interests of the administration of justice.

(2) Without prejudice to the generality of paragraph (1), a judge advocate may conclude that it is necessary or expedient in the interests of the administration of justice to make an order under this rule on the ground that, if no order were made, the Director would be—

(a) likely to abandon the proceedings, or

(b) unlikely to contest comparable proceedings in future,

for fear that information useful to an enemy might be disclosed, or national security endangered.

(3) An order under this rule may be made only on oral application by a party to the proceedings, and such an application shall be made in camera unless the judge advocate otherwise directs.

(4) Section 145 (open court) shall not apply in relation to—

(a) any proceedings, or any part of any proceedings, as respects which an order under this rule has been made; or

(b) unless the judge advocate hearing the application otherwise directs, the hearing of an application for such an order.

91

The court may give leave for any name or other matter given in evidence in proceedings to be withheld from the public.

92

(1) An application under section 149(2) to the court to have a case stated for the opinion of the High Court shall be made in writing and shall be served on the court administration officer and the appellant or the Director, as the case may be, within 21 days of the date of the decision in respect of which the application is made.

(2) The application shall state the grounds on which the decision of the court is questioned.

(3) On receipt of the application, the court administration officer shall as soon as practicable send it to the judge advocate who presided over the proceedings to which the application relates.

(4) Within 14 days of receipt of the application, the judge advocate shall inform the court administration officer as to whether or not he has decided to state a case and that officer shall give notice in writing to the applicant of the judge advocate's decision.

(5) If the judge advocate considers that the application is frivolous, he may refuse to state a case and shall in that case, if the applicant so requires, cause a certificate stating the reasons for the refusal to be given to him.

93

(1) If the judge advocate decides to state a case the procedure to be followed shall, unless the judge advocate directs otherwise, be the procedure set out in the following provisions of this rule.

(2) The applicant shall, within 21 days of receiving the notice referred to in rule 92(4), draft a case and serve a copy of it on the court administration officer and the appellant or the Director, as the case may be.

(3) The appellant or the Director, as the case may be, shall, within 21 days of receiving a copy of the draft case under paragraph (2), either—

(a) give notice in writing to the applicant and the court administration officer that he does not intend to take part in the proceedings before the High Court; or

(b) indicate in writing on the copy of the draft case that he agrees with it and send the copy to the court administration officer; or

(c) draft an alternative case and serve it, together with a copy of the applicant's case, on the court administration officer.

(4) The judge advocate shall consider the applicant's draft case and any alternative draft case served on the court administration officer in accordance with paragraph (3)(c).

(5) The function of the court in stating a case under section 149(2) shall be exercised by the judge advocate sitting alone.

(6) The judge advocate shall state and sign a case within 14 days after either—

(a) the date on which he receives all the documents required to be served on the court administration officer under paragraph (3), or

(b) the expiration of the period of 21 days referred to in that paragraph,

whichever is the sooner.

94

(1) A case stated by the court shall state the facts found by the court, the submissions of the parties (including any authorities relied on by the parties during the course of those submissions), the decision of the court in respect of which the application is made and the question on which the opinion of the High Court is sought.

(2) Any time limit referred to in this Part may be extended by the judge advocate either before or after it expires.

(3) If the judge advocate decides not to state a case but the stating of a case is subsequently required by the High Court by mandatory order, rule 93 shall apply to the stating of the case save that—

(a) in paragraph (1), the words “If the judge advocate decides to state a case” shall be omitted; and

(b) in paragraph (2) for the words “receiving the notice referred to in rule 92(4)” there shall be substituted the words “the day on which the mandatory order was made”.

95

Until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005 comes into force, the reference in rule 41(2)(c) to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland.

96

Schedule 2 shall have effect.

97

The Summary Appeal Courts (Amendment) Rules 2005 are hereby revoked.

The words prescribed are—

(a) for lay members “… I will well and truly try the appellant before the court according to the evidence; I will duly administer justice according to law and without partiality, favour or affection; and I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of the Summary Appeal Court, unless required to do so in due course of law”;

(b) for persons in attendance for instruction, “… I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of the Summary Appeal Court, unless required to do so in due course of law”;

(d) for interpreters, “… I will well and faithfully interpret and make true explanation of all such matters and things as shall be required of me according to the best of my skill and understanding”.

Editorial notes

[^c19687861]: 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” includes 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 Summary Appeal Court.

[^c19687871]: 2006 c. 52.

[^c19687881]: 1967 c. 80.

[^c19687891]: S.I. 2009/988.

[^c19687901]: 2006 c. 46.

[^c19687911]: 1978 c. 19.

[^c19687921]: 1990 c. 41. Subsection (6) of section 71 of the Courts and Legal Services Act 1990 was substituted by the Access to Justice Act 1999 (c. 22), section 43, Schedule 6, paragraphs 4 and 9. Subsections (7) and (8) of section 71 of the 1990 Act were repealed by section 106, Schedule 15, Part 2 of the 1999 Act. Prospective amendments to section 71 of the 1990 Act are made to subsections (1) and (3) by the Constitutional Reform Act 2005 (c. 4), section 59(5), Schedule 11, Part 2, paragraph 4(1), (3). Prospective amendments are made to subsections (4) and (6) and a new subsection (6A) is inserted into section 71 of the 1990 Act by the Legal Services Act 2007 (c. 29), section 208(1), Schedule 21, paragraphs 83 and 94(a), (b) and (c).

[^c19687931]: 1974 c. 53. Sections 2 and 6 of the Rehabilitation of Offenders Act 1974 were amended, and the Schedule inserted, by the Armed Forces Act 1996 (c. 46), section 13 and Schedule 4. Sections 1, 2 and 5, and the Schedule, were further amended by paragraphs 63 to 66 of Schedule 16 to the Act.

[^c19687941]: 2005 c. 4.

[^c19687951]: S.I. 2005/1536: these Rules were made under section 83ZJ of the Army Act 1955 (c. 18), section 83ZJ of the Air Force Act 1955 (c. 19), section 52FP of the Naval Discipline Act 1957 (c. 53) and sections 111 and 132 of the Criminal Justice Act 2003.

[^c19687961]: 1955 c. 18.

[^c19687971]: 1955 c. 19.

[^c19687981]: S.I. 2000/2371.

[^c19687991]: 1957 c. 53.

[^c19688001]: S.I. 2000/2372.

[^c19688011]: S.I. 2000/2370.

[^c19688021]: 2001 c. 19.

[^key-130b6450dd0540810dc9a03185b7cbb2]: Rule 29 substituted (27.10.2013) by The Armed Forces (Interpretation, Translation and Alcohol and Drug Tests) Rules 2013 (S.I. 2013/2527), rules. 1(2), 6

[^key-e83a9befb74a7e1c23f184d992a6a4d7]: Semi-colon in rule 30(2) substituted (27.10.2013) by The Armed Forces (Interpretation, Translation and Alcohol and Drug Tests) Rules 2013 (S.I. 2013/2527), rules 1(2), 7(a)

[^key-27eae8117788ce3bf8a8049d25788e33]: Rule 30(2)(f)-(i) inserted (27.10.2013) by The Armed Forces (Interpretation, Translation and Alcohol and Drug Tests) Rules 2013 (S.I. 2013/2527), rules 1(2), 7(b)

[^key-518c954a9126cc8a10ac3348ea90a210]: Pt. 11 Ch. 6 inserted (1.11.2013) by The Armed Forces (Interpretation, Translation and Alcohol and Drug Tests) Rules 2013 (S.I. 2013/2527), rules 1(2), 8

[^key-2625acb72c138a26cfe1bfbf3d19ad98]: Rule 29A inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 4

[^key-4ae190d2f805d762602551f8d5f7d7ff]: Pt. 11 Ch. 7 inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 6

[^key-cab1ae597405c5a69107ed729a68842e]: Words in rule 3(2) inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 3

[^key-d591acb36eecbf999604f9831e245600]: Word in rule 30(2)(h) deleted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 5(a)

[^key-c78ffd69e5891ec8ccc79218d8c0f0d0]: Rule 30(2)(j) inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 5(c)

[^key-8d7bf2670d3fb1ea63b010a71b3f0b66]: Full stop in rule 30(2)(i) repealed (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 5(b)

[^key-11d48f503c457f0f92395d61a35813bb]: Word in rule 30(2)(i) inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 5(b)

[^key-2d85333c9ab776f80ad0a54426f44139]: Word in rule 86(2)(g) deleted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(a)

[^key-445aea8e38e995fa80b45ec54513b18a]: Rule 86(2)(i) inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(c)

[^key-0f842567b2f29cb36089a5ae83c6cf2a]: Full stop in rule 86(2)(h) repealed (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(b)

[^key-66d8eee9fede369c73a8c5031c7e996b]: Word in rule 86(2)(h) inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(b)

[^key-8c5cce3a4252f0940bf39254dddb4b77]: Pt. 1A inserted (1.1.2023) by The Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022 (S.I. 2022/1263), rules 1(2), 11

[^key-9255170a0bafa6964ba53546e136c7f4]: Rule 49(4)(5) substituted for rule 49(4) (1.1.2023) by The Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022 (S.I. 2022/1263), rules 1(2), 12(3)

[^key-5cc3ec315042445566c0a600b2da4bc7]: Rule 49(1) substituted (1.1.2023) by The Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022 (S.I. 2022/1263), rules 1(2), 12(2)

[^key-983f1a934bf9a85f10973b5c194f3240]: Pt. 12A inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 13

[^key-8dce57115200f65e07513c8bd6d4a121]: Rule 2(1)(c) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 7(1)(a)

[^key-d936959b650618edd1adfedcb01bbcd8]: Words in rule 2(2) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 7(1)(b)

[^key-efd668a1c7585c4e9f2b21b5efa83eb1]: Rule 2(4)(c) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 7(1)(c)

[^key-64581b7085ffdebd2e322663cc44489f]: Rule 34(4) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 8

[^key-0a93d1365d66753274fdc73169521691]: Words in rule 36(2) substituted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 10(1)

[^key-352ee6682a2316365fa50b3fbbf0c8ec]: Rule 36(3A)(3B) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 10(2)

[^key-78644da466c1e4f124a628a762609a09]: Words in rule 86(2)(d)(ii) substituted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 12(a)

[^key-a4a24919c63c69f7274e5de230ffd67e]: Rule 86(2)(d)(iii) substituted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 12(b)

[^key-d6fa733df66dacefbe86481cf93cfa26]: Rule 35(c) and word inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 9

[^key-8aba1bd144e490f5ed75d74581272d1e]: Rule 37(5) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 11

Interpretation, translation and communication through an intermediary

CHAPTER 6 — Use of specimens in relation to offences under sections 20(1)(a) and 20A of the Armed Forces Act 2006

Application and interpretation

74A

(1) This Chapter applies to proceedings for the hearing of an appeal against a finding that a relevant charge has been proved.

(2) In paragraph (1) “relevant charge” means a charge of an offence under—

(a) section 20(1)(a) of the Act (unfitness for duty through alcohol or drugs); or

(b) section 20A of the Act (exceeding alcohol limit for prescribed safety-critical duties).

(3) In this Chapter “drug”, “medical establishment”, “service police establishment” and “service policeman” have the meanings given by section 93I of the Act.

Use of specimens

74B

(1) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the appellant shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account and, subject to paragraph (2), it shall be assumed that the proportion of alcohol in the appellant’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.

(2) That assumption shall not be made if the appellant proves—

(a) that he consumed alcohol before he provided the specimen or had it taken from him, and after the time of the alleged offence; and

(b) that had he not done so the proportion of alcohol in his breath, blood or urine—

(i) in the case of an offence under section 20(1)(a) of the Act, would not have been such as to impair his ability to carry out the duty in question;

(ii) in the case of an offence under section 20A of the Act, would not have exceeded the relevant limit (within the meaning of that section).

(3) A specimen of blood shall be disregarded unless—

(a) it was taken from the appellant under section 93E of the Act; or

(b) it was taken from the appellant under section 93G of the Act and the appellant subsequently gave his permission for a laboratory test of the specimen.

(4) Where, at the time a specimen of blood or urine was provided by the appellant, he asked to be provided with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the Director unless—

(a) the specimen in which the alcohol or drug was found is one of two parts into which the specimen provided by the appellant was divided at the time it was provided; and

(b) the other part was supplied to the appellant.

(5) Where a specimen of blood was taken from the appellant under section 93G of the Act, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the Director unless—

(a) the specimen in which the alcohol or drug was found is one of two parts into which the specimen taken from the appellant was divided at the time it was taken; and

(b) any request to be supplied with the other part which was made by the appellant at the time when he gave his permission for a laboratory test of the specimen was complied with.

Documentary evidence as to specimens

74C

(1) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine may, subject to paragraphs (3) and (4) and to rule 74B(4) and (5), be given by the production of a document or documents purporting to be whichever of the following is appropriate, that is to say—

(a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a service policeman (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the appellant at the date and time shown in the statement; and

(b) a certificate signed by an authorised analyst as to the proportion of alcohol or any drug found in a specimen of blood or urine identified in the certificate.

(2) Subject to paragraphs (3) and (4), evidence that a specimen of blood was taken from the appellant with his consent by a registered medical practitioner or a registered nurse may be given by the production of a document purporting to certify that fact and to be signed by a registered medical practitioner or registered nurse.

(3) Subject to paragraph (4)—

(a) a document purporting to be such a statement or such a certificate (or both such a statement and such a certificate) as is mentioned in paragraph (1)(a) is admissible in evidence on behalf of the Director in pursuance of this rule only if a copy of it either has been handed to the appellant when the document was produced or has been served on him not later than seven days before the hearing; and

(b) any other document is so admissible only if a copy of it has been served on the appellant not later than seven days before the hearing.

(4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not so admissible if the appellant, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the Director requiring the attendance at the hearing of the person by whom the document purports to be signed.

(5) In this rule “authorised analyst” means—

(a) any person possessing the qualifications prescribed by regulations made under section 27 of the Food Safety Act 1990 as qualifying persons for appointment as public analysts under that Act; and

(b) any other person authorised by the Secretary of State to make analyses for the purposes of section 16 of the Road Traffic Offenders Act 1988 or this rule.

Interpretation, translation for persons other than the appellant

29A

(1) Where the complainant is due to attend a hearing as a witness, the court administration officer, where satisfied that the person needs interpretation, shall appoint an interpreter to act at the hearing.

(2) The court administration officer may also appoint an interpreter for any other witness who is required to give evidence at a hearing, other than an appellant.

(3) Before an interpreter begins to act at a hearing, an oath shall be administered to the interpreter.

(4) Before an interpreter is sworn, the interpreter’s name shall be read out, and any party to the proceedings may object to the interpreter on any reasonable ground.

(5) If the judge advocate upholds any such objection, the interpreter shall not be sworn, and the court administration officer shall appoint another interpreter.

(6) On application or on his own initiative, the judge advocate may require a written translation of any document or part of a document to be provided for a complainant or other person who attends a hearing as a witness (other than an appellant) and who needs interpretation.

(7) In its application by virtue of paragraph (6), nothing in this rule is limited by anything in Chapter 7 of Part 11 (special measures directions).

Record of proceedings

Exhibits

Termination of proceedings

Circumstances not provided for

CHAPTER 7 — Special Measures Directions

Interpretation of Chapter 7

74D

(1) In this Chapter—

“the 1999 Act” means the Youth Justice and Criminal Evidence Act 1999;

“eligible witness” means a witness eligible for assistance by virtue of rule 74E or 74F;

“intermediary” has the same meaning as in section 29 of the 1999 Act;

“special measures direction” means a direction providing for one or more of the special measures available in relation to a witness to apply to evidence given by the witness;

“the special measures provisions” means the provisions of Chapter 1 of Part 2 of the 1999 Act applied by an order under section 61(1) of that Act.

(2) In this Chapter—

(a) references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively); and

(b) references to the special measures available in relation to a witness are to be construed in accordance with rule 74G.

Witnesses eligible for assistance on grounds of age or incapacity

74E

(1) A witness is eligible for assistance by virtue of this rule if the witness is under the age of 18 at the time when it falls to the judge advocate to consider whether to give a special measures direction in relation to the witness.

(2) A witness is also eligible for assistance by virtue of this rule if the judge advocate considers that the quality of evidence given by the witness is likely to be diminished because the witness—

(a) suffers from mental disorder within the meaning of the Mental Health Act 1983;

(b) otherwise has a significant impairment of intelligence and social functioning; or

Witnesses eligible for assistance on grounds of fear or distress about testifying

74F

A witness (other than an appellant) is eligible for assistance by virtue of this rule if the judge advocate is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.

Special measures available

74G

(1) Where a witness (other than an appellant) is eligible for assistance by virtue of rule 74E, the special measures available in relation to him are those for which provision is made by sections 23, 25 to 27, 29 and 30 of the 1999 Act.

(2) Where a witness is eligible for assistance by virtue of rule 74F, the special measures available in relation to him are those for which provision is made by sections 23 and 25 to 27 of that Act.

(3) Where an appellant is eligible for assistance by virtue of rule 74E, the special measures available in relation to him are those for which provision is made by sections 29 and 30 of that Act.

Special measures direction relating to eligible witness

74H

(1) Subject to the special measures provisions and this Chapter, a judge advocate may give a special measures direction in relation to a witness if—

(a) the witness is an eligible witness; and

(b) any of the special measures available in relation to the witness (or any combination of them) would, in the judge advocate’s opinion, be likely to improve the quality of evidence given by the witness.

(2) A special measures direction must specify particulars of the provision made by the direction in respect of each special measure which is to apply to the witness’s evidence.

(3) In determining whether any special measure or measures would be likely to improve the quality of evidence given by the witness, and if so whether to give a direction providing for the measure or measures to apply, a judge advocate must consider all the circumstances of the case, including in particular—

(a) any views expressed by the witness; and

(b) whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings.

(4) A special measures direction may provide for one or more special measures to apply in combination with a direction under rule 25 (live links), and for the purposes of this Chapter a measure would be likely to improve the quality of the witness’s evidence if, were it combined with such a direction, it would be likely to do so.

(5) A judge advocate may give a special measures direction—

(a) on an application made by a party to the proceedings; or

(b) of the judge advocate’s own motion.

(6) A judge advocate who gives, or refuses an application for, a special measures direction must state in open court his reasons for doing so.

(7) Nothing in this Chapter is to be regarded as affecting any power of the court or a judge advocate to make an order or give leave of any description—

(a) in relation to a witness who is not an eligible witness; or

(b) in relation to an eligible witness, where the order is made or the leave is given otherwise than by reason of the fact that the witness is an eligible witness.

Evidence given in private

74I

A special measures direction may not provide for the exclusion of persons under section 25 of the 1999 Act unless it appears to the judge advocate that there are reasonable grounds for believing that any person other than an appellant has sought, or will seek, to intimidate the witness in connection with testifying in the proceedings.

Video recorded evidence in chief

74J

(1) A special measures direction may not provide for a video recording, or a part of such a recording, to be admitted under section 27 of the 1999 Act if the judge advocate is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.

(2) In considering for the purposes of paragraph (1) whether any part of a recording should not be so admitted, the judge advocate must consider whether any prejudice to an appellant which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.

(3) Where a special measures direction provides for a recording to be admitted under section 27 of the 1999 Act, the judge advocate may nevertheless subsequently direct that it is not to be so admitted if—

(a) it appears to the judge advocate that—

(i) the witness will not be available for cross-examination (whether conducted in the ordinary way or in accordance with any such direction); and

(ii) the parties to the proceedings have not agreed that there is no need for the witness to be so available; or

(b) rule 74M has not been complied with to the satisfaction of the judge advocate.

(4) Paragraph (3) is without prejudice to rule 74N (power to vary or discharge special measures direction).

(5) Where a recording is admitted under section 27 of the 1999 Act—

(a) the witness must be called by the party tendering it in evidence, unless the parties to the proceedings have agreed that there is no need for the witness to be called; and

(b) the witness may not give evidence in chief otherwise than by means of the recording—

(i) as to any matter which, in the opinion of the judge advocate, has been dealt with adequately in the witness’s recorded testimony; or

(ii) without the leave of the judge advocate, as to any other matter which, in the opinion of the judge advocate, is dealt with in that testimony.

(6) Where a special measures direction provides for part only of a recording to be admitted under section 27 of the 1999 Act, references in paragraphs (3) and (4) to the recording or to the witness’s recorded testimony are references to the part of the recording or testimony which is to be so admitted.

(7) The judge advocate may give leave for the purposes of paragraph (5)(b)(ii) if it appears to him to be in the interests of justice to do so, and may do so either—

(a) on an application by a party to the proceedings; or

(b) of his own motion.

Examination of witness through intermediary

74K

(1) Any examination of a witness conducted in pursuance of a provision included in a special measures direction by virtue of section 29(1) of the 1999 Act (examination of witness through intermediary) must take place—

(a) in the presence of such persons as the direction may provide; and

(b) in circumstances in which the members of 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 intermediary (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)(b) is to be regarded as satisfied in relation to those representatives if at all material times it is satisfied in relation to at least one of them.

(3) Before an intermediary begins to act, he shall make a declaration in the following form:

“I solemnly, sincerely and truly declare that I will well and faithfully communicate the questions and answers and make true explanation of all matters and things as shall be required of me according to the best of my skill and understanding.”

(4) In this rule “the intermediary” has the same meaning as in section 29 of the 1999 Act.

Application for special measures direction: general

74L

(1) An application for a special measures direction must be made in writing to the court administration officer, unless a judge advocate gives leave for it to be made orally.

(2) A written application must specify—

(a) unless the application is made by an appellant and does not relate to evidence in support of an alibi, the name and date of birth of the witness in relation to whom it is made;

(b) the special measure or measures sought;

(c) where the application is for a direction including provision by virtue of section 27 of the 1999 Act (video recorded evidence in chief), the information mentioned in rule 74M(4);

(d) the grounds on which the applicant asserts—

(i) that the witness is an eligible witness; and

(ii) that the measure or measures will improve the quality of the witness’s evidence; and

(e) the views of the witness as to the matters specified in accordance with sub-paragraph (d).

(3) In paragraph (2)(a) “evidence in support of an alibi” has the same meaning as in article 7 of the CPIA Order.

(4) A written application must be made, and a copy served on all other parties to the proceedings—

(a) where the application is made by the Director, not more than 14 days after the Director serves advance information in respect of the charge to which the proposed evidence relates;

(b) where the application is made by an appellant, not more than 14 days after the Director complies or purports to comply with article 4 of the CPIA Order.

(5) Notwithstanding paragraph (4), a judge advocate may at his discretion consider a written application made outside the period of 14 days there mentioned.

(6) Where a written application has been made, a judge advocate may—

(a) grant the application without a hearing; or

(b) direct a hearing.

(7) But the application may not be granted without a hearing unless—

(a) at least 14 days have elapsed since the application was served on each other party to the proceedings; and

(b) no other party has served notice on the court administration officer that he opposes the application.

(8) Any party to the proceedings—

(a) may attend a hearing of the application, and be heard;

(b) may, with leave of the judge advocate, adduce evidence (including expert evidence) at the hearing.

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

74M

(1) This rule applies where an application is made for a special measures direction including provision by virtue of section 27 of the 1999 Act.

(2) The application must be accompanied by a copy of the video recording which (or part of which) it is proposed to tender in evidence.

(3) Where the application is made by the Director, he must at the same time serve on the appellant a copy of that recording.

(4) The application must include the following information—

(a) the date on which the recording was made;

(b) the times at which the recording commenced and finished, including details of any interruptions;

(d) in relation to each person present at any point during, or immediately before, the recording—

(i) the name, age and occupation of the person;

(ii) the time for which he was present; and

(iii) his relationship (if any) to the witness;

(e) in relation to the equipment used for the recording—

(i) a description of the equipment;

(ii) the number of cameras used;

(iii) whether the cameras were fixed or mobile;

(iv) the number and location of the microphones;

(v) the video format used; and

(vi) whether it offered single or multiple recording facilities and, if so, which were used; and

(f) if the recording is a copy—

(i) the location of the master recording; and

(ii) details of when and by whom the copy was made.

(5) Where the applicant is an appellant and the application is granted, the applicant must, not later than the close of the case for the prosecution, serve on each other party to the proceedings a copy of the video recording which (or part of which) it is proposed to tender in evidence under the direction.

Variation or discharge of special measures direction

74N

(1) A judge advocate may vary or discharge a special measures direction if it appears to him to be in the interests of justice to do so.

(2) A judge advocate may exercise the power conferred by paragraph (1)—

(a) on an application made by a party to the proceedings; or

(b) of the judge advocate’s own motion.

(3) An application under this rule must be made in writing to the court administration officer, unless—

(a) a judge advocate gives leave for it to be made orally; or

(b) paragraph (8) applies.

(4) A copy of a written application under this rule must be served on each other party to the proceedings.

(5) Where a written application has been made under this rule, a judge advocate may—

(a) grant the application without a hearing; or

(b) direct a hearing.

(6) But the application may not be granted without a hearing unless—

(a) at least 14 days have elapsed since the application was served on each other party to the proceedings; and

(b) no other party has served notice on the court administration officer that he opposes the application.

(7) Rule 74L(8) applies in relation to a hearing of the application as it applies in relation to a hearing of an application for a special measures direction.

(8) Where the direction was made on the application of an appellant and includes provision for the admission of a video recording which had not been served on the Director, the Director may make an oral application without leave.

(9) A judge advocate who varies or discharges, or refuses an application for the variation or discharge of, a special measures direction must state in open court his reasons for doing so.

(10) In this rule, references to the variation of a special measures direction include the further variation of a direction previously varied.

Warning to lay members

74O

Where in proceedings with lay members evidence has been given in accordance with a special measures direction, the judge advocate must give the lay members such warning (if any) as he considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice the appellant.

PART1A — 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;

(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, victims and lay members (if any) 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.

Part 12A — Variation Proceedings

Application of Part 12A

88A

This Part applies where the court has, on or after 13th November 2023, awarded a punishment in appeal proceedings or confirmed in appeal proceedings a punishment awarded by a commanding officer at summary hearing.

Interpretation of Part 12A

88B

In this Part—

“original punishment” means the punishment, awarded by the commanding officer, which was the subject of appeal proceedings;

“SAC punishment” means the punishment awarded by the court in appeal proceedings or, where in appeal proceedings the court confirms an original punishment, the punishment confirmed by the court;

“varied punishment” means a punishment substituted for the SAC punishment in accordance with this Part.

Power to vary punishment

88C

(1) The court may vary the SAC punishment if it appears to the court that it had no power to award or confirm the SAC punishment.

(2) The power conferred by this rule—

(a) may be exercised within the period of 56 days beginning with the day on which the SAC punishment was awarded or confirmed;

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

(3) Unless the court otherwise orders, a varied punishment takes effect—

(a) where the SAC punishment is one that was awarded by the court, from the beginning of the day on which the SAC punishment took effect, or

(b) where the SAC punishment is one that was confirmed by the court, from the beginning of the day on which the commanding officer awarded the original punishment.

Direction that variation proceedings be held

88D

(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 SAC punishment was awarded or confirmed, the judge advocate for those proceedings may direct the court administration officer to appoint a time and place for variation proceedings in respect of that SAC punishment.

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

(a) on the application of the Director or the appellant, 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 appellant, or

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

Direction that variation proceedings be held without lay members

88E

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

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

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

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

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

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

(5) In this rule—

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

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

(6) In this rule—

“inconvenience” includes expense and adverse effect on the operational effectiveness of any of His Majesty’s forces, and

“the original lay members” means the persons who were lay members of the court when it awarded or confirmed the SAC punishment.

Attendance of lay members by live link

88F

(1) A lay member may attend variation proceedings by live link.

(2) In this rule, “live link” means an arrangement by which a lay member, when not in the place where the variation proceedings are being held, is able to see and hear, and to be seen and heard, by other members of the court during the proceedings (and for this purpose any impairment of eyesight or hearing is to be disregarded).

Decision on variation of punishment

88G

In the case of an equality of votes on whether the SAC punishment should be varied, and if so how, the judge advocate has a casting vote.

Announcement of varied punishment

88H

Where the court varies the SAC punishment, rule 88 (pronouncement of punishment) 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 pronouncement of punishment.

Power to order appellant’s release from detention

88I

(1) This rule applies where an appellant is in detention by virtue of an SAC punishment.

(2) The judge advocate may order that the appellant be released immediately if, within the period of 56 days beginning on the day which the SAC punishment was awarded or confirmed, it appears to the judge advocate that—

(a) the court had no power to award or confirm such a punishment, or

(b) the maximum term for which the court had power to award or confirm such a punishment has expired.

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

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

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