The Armed Forces (Summary Appeal Court) Rules 2009

• (1) When the court administration officer specifies the lay members for any proceedings to which rule 37 applies, he shall at the same time specify a person (referred to in these Rules as a “waiting member”) to take the place of any lay member who may be discharged under rule 37(4).

• (2) Where a lay member is discharged under rule 37(4) the waiting member shall become a lay member.

• (3) Where the court administration officer specifies a waiting member, he shall specify a second waiting member if a judge advocate so directs.

• (4) A second waiting member may be specified at any time before the commencement of the proceedings.

• (5) Where two waiting members have been specified and paragraph (2) applies, the reference in that paragraph to the waiting member is to the senior waiting member.

• (6) Where—

• (a) two waiting members have been specified, and

• (b) two lay members are discharged under rule 37(4),

both the waiting members shall become lay members.

• (7) Rule 37(2) to (4) applies in relation to a waiting member who becomes a lay member by virtue of this rule.

39

At the commencement of any proceedings to which rule 37 applies, an oath shall be administered—

• (a) subject to that rule, to each of the lay members; and

• (b) to any person in attendance for instruction.

40

In any proceedings with lay members, the judge advocate may direct the lay members to withdraw while he hears submissions or gives a ruling on any question of law, practice or procedure.

41

• (1) A party to proceedings may appoint a legal representative to act for him in relation to the proceedings.

• (2) A person may not be appointed as a legal representative unless—

• (a) he has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 ;

• (b) he is an advocate or a solicitor in Scotland;

• (c) he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or

• (d) he is a person having in any of the Channel Islands, the Isle of Man, a Commonwealth country or a British overseas territory rights and duties similar to those of a barrister or solicitor in England and Wales, and subject to punishment or disability for breach of professional rules.

• (3) Any right conferred on a party to proceedings by these Rules may be exercised, and any duty imposed on him by these Rules discharged, by his legal representative on his behalf.

• (4) A party who appoints a legal representative shall notify the court administration officer of the legal representative's name and address.

42

• (1) In the case of appeal proceedings, the Director must, as soon as is practicable serve advance information on—

• (a) the court administration officer;

• (b) the appellant; and

• (c) the appellant's legal representative (if any).

• (2) For an appeal against finding, “advance information” means—

• (a) copies of the statements of those witnesses on whom the Director intends to rely against the appellant;

• (b) a list of all exhibits which the Director intends to adduce in evidence against the appellant, and a statement of where any non-documentary exhibits are held; and

• (c) a transcript of any sound recording of an interview with the appellant.

• (3) For an appeal against punishment, “advance information” means—

• (a) a statement of the information that the Director proposes to present to the court in pursuance of rule 86(2); and

• (b) the written record.

• (4) Where, after the Director has served advance information on an appellant, he intends to adduce any evidence not included in the advance information, he must as soon as is practicable serve on the appellant and the court administration officer such documents as he would have been required to include in the advance information if he had had that intention at the time when he served advance information.

• (5) Where paragraph (4) applies in the course of appeal proceedings, the reference in that paragraph to the court administration officer is to be read as a reference to the judge advocate.

• (6) Where the Director no longer intends to call a witness whose statement he has served under this rule, he must as soon as is practicable give notice of that fact to every appellant.

43

On receipt of the advance information, the court administration officer must—

• (a) forward it to the Judge Advocate General and request him to–

• (i) determine whether preliminary proceedings are necessary;

• (ii) specify a judge advocate for proceedings in relation to the appeal; and

• (b) appoint a time and place for the commencement of preliminary or appeal proceedings.

44

• (1) Where the Judge Advocate General has determined that preliminary proceedings are necessary, the court administration officer must appoint a time and place for further preliminary proceedings if so directed by—

• (a) the judge advocate for any preliminary proceedings; or

• (b) the Judge Advocate General.

• (2) The judge advocate for any preliminary proceedings may give a direction under this rule—

• (a) on the oral application of the Director or an appellant; or

• (b) of his own motion.

• (3) The Judge Advocate General may give a direction under this rule on the written application of the Director or an appellant.

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

• (a) must be made to the court administration officer;

• (b) must specify the reason for which further preliminary proceedings are required;

• (c) must include an estimate of the likely length of the further preliminary proceedings; and

• (d) subject to rule 45 (preliminary proceedings in chambers without notice), must be served on every other party to the proposed appeal proceedings.

45

On application by the Director, the judge advocate for any preliminary proceedings may direct that the proceedings are, or that any part of the proceedings is—

• (a) where there is one appellant, to be held in his absence and without notice to him;

• (b) where there are two or more appellants, to be held in the absence of both or all of them and without notice to any of them.

46

A judge advocate may direct the Director to serve on each appellant and the court administration officer, before any preliminary proceedings, an outline of the respondent's case.

47

• (1) In preliminary proceedings the judge advocate may give such directions as appear to him to be necessary to secure the proper and efficient management of the appeal.

• (2) Without prejudice to paragraph (1), the judge advocate may make an order or ruling on—

• (a) any question as to the admissibility of evidence;

• (b) any question as to the joinder or severance of charges; or

• (c) any other question of law, practice or procedure relating to the appeal.

• (3) Any direction given in preliminary proceedings shall have effect throughout any related proceedings unless varied or discharged by—

• (a) the judge advocate who gave it; or

• (b) the judge advocate for any related proceedings.

• (4) Any order or ruling made in preliminary proceedings shall have effect throughout any related proceedings unless varied or discharged—

• (a) by the judge advocate who made it; or

• (b) by the judge advocate for any related proceedings.

48

• (1) The court may decide to hear two or more appeals at the same time where it appears to be in the interests of justice to do so.

• (2) The court may make a determination under paragraph (1) of its own motion or on the application of the Director or of a person who is the appellant in one or more of the appeals to which the application relates.

• (3) The power of the court to make a determination under paragraph (1) shall be exercised by a judge advocate sitting alone.

• (4) Before refusing an application under paragraph (2) or making a determination under paragraph (1), the judge advocate shall afford the Director and any person who is the appellant in any of the appeals to which the application or determination relates the opportunity of making representations to him.

49

• (1) Where any person is required to give evidence in any proceedings, the person must be notified of the time and place at which they are required to attend by—

• (a) the Director, if the person is required to give evidence by the Director; or

• (b) the court administration officer.

• (2) When the court administration officer gives notice of any proceedings to a party to the proceedings other than the Director, he shall offer to notify any person whom the party may require to give evidence.

• (3) Where a witness summons is issued under rule 50 or 52, the court administration officer shall serve it on the person to whom it is directed.

• (4) Where the Director is required to notify a person under this rule and in the opinion of the Director it is not reasonably practicable to do so, the Director must give notice of that fact to the judge advocate.

• (5) Where the court administration officer is required to notify a person under this rule or serve a witness summons on a person and in the opinion of the court administration officer it is not reasonably practicable to do so, the court administration officer must give notice of that fact to the judge advocate and the party who wishes the person to attend.

50

• (1) This rule applies where a judge advocate is satisfied that—

• (a) a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any proceedings before the court; and

• (b) it is in the interests of justice to issue a witness summons under this rule to secure the attendance of that person to give evidence or to produce the document or thing.

• (2) In such a case, the judge advocate shall, subject to the following provisions of this rule, issue a witness summons directed to the person concerned and requiring him to—

• (a) attend before the court at the time and place stated in the witness summons; and

• (b) give the evidence or produce the document or thing.

• (3) A witness summons may be issued under this rule only on an application; and the judge advocate may refuse to issue the witness summons if any requirement relating to the application is not fulfilled.

• (4) An application for a witness summons must be made as soon as is practicable after the applicant becomes aware of the grounds for making it.

• (5) The application must—

• (a) identify the proposed witness;

• (b) explain—

• (i) what evidence the proposed witness can give or produce;

• (ii) why it is likely to be material evidence; and

• (iii) why it would be in the interests of justice to issue a witness summons.

• (6) The application may be made orally unless the judge advocate otherwise directs.

• (7) An application in writing must contain a declaration that the facts stated in it are true to the best of the applicant's knowledge and belief.

• (8) An application in writing must be served on the court administration officer and as directed by the judge advocate.

• (9) A witness summons issued under this rule which requires a person to attend before the court and produce a document or thing may also require him to produce the document or thing—

• (a) at a place stated in the witness summons, and

• (b) at a time so stated, before the time at which the summons requires him to attend before the court,

for inspection by the applicant.

• (10) A witness summons issued under this rule must state that failure to comply with the summons may result in the issue of a warrant for the arrest of the person to whom the summons is addressed.

51

• (1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the grounds that—

• (a) it is not likely to be material evidence; or

• (b) even if it is likely to be material evidence, the duties or rights (including rights of confidentiality) of the proposed witness or of any person to whom the document or thing relates outweigh the reasons for issuing a witness summons.

• (2) A judge advocate may require the proposed witness to make the document or thing available for the objection to be assessed.

• (3) The judge advocate may invite—

• (a) the proposed witness or any representative of the proposed witness, or

• (b) a person to whom the document or thing relates or any representative of such a person,

to help the judge advocate assess the objection.

52

• (1) For the purpose of any proceedings, a judge advocate may of his own motion issue a witness summons directed to a person and requiring him to—

• (a) attend before the court at the time and place stated in the witness summons; and

• (b) give evidence, or produce any document or thing specified in the witness summons.

• (2) A witness summons issued under this rule must state that failure to comply with the summons may result in the issue of a warrant for the arrest of the person to whom the summons is addressed.

• (3) A judge advocate may withdraw a witness summons issued under this rule if he no longer considers it necessary or if one of the following applies for it to be withdrawn—

• (a) the witness, on the grounds that—

• (i) he cannot give or produce evidence likely to be material evidence; or

• (ii) even if he can, his duties or rights (including rights of confidentiality) or those of any person to whom the evidence relates outweigh the reasons for the issue of the witness summons; or

• (b) any person to whom the proposed evidence relates, on the grounds that—

• (i) that evidence is not likely to be material evidence; or

• (ii) even if it is, his duties or rights (including rights of confidentiality) or those of the witness outweigh the reasons for the issue of the witness summons.

53

• (1) A judge advocate may withdraw a witness summons if an application is made under this rule.

• (2) An application under this rule may be made by the party who applied for the witness summons, on the ground that it is no longer needed.

• (3) An application under this rule may also be made by the witness, on the grounds that—

• (a) he was not aware of any application for it; and

• (b) either—

• (i) he cannot give or produce evidence likely to be material evidence; or

• (ii) even if he can, his duties or rights (including rights of confidentiality) or those of any person to whom the evidence relates outweigh the reasons for the issue of the witness summons.

• (4) An application under this rule may also be made by any person to whom the proposed evidence relates, on the grounds that—

• (a) he was not aware of any application for it; and

• (b) either—

• (i) that evidence is not likely to be material evidence; or

• (ii) even if it is, his duties or rights (including rights of confidentiality) or those of the witness outweigh the reasons for the issue of the witness summons.

• (5) An application under this rule—

• (a) must be made in writing to the court administration officer;

• (b) must be made as soon as is practicable after the applicant becomes aware of the grounds for making it; and

• (c) must state the grounds on which it is made.

• (6) An application under this rule must be served on—

• (a) the witness (where he is not the applicant);

• (b) the party who applied for the witness summons (where he is not the applicant); and

• (c) any other person who, to the applicant's knowledge, has been served with the application for the witness summons.

• (7) Where—

• (a) a witness summons requires the proposed witness to produce in evidence a document or other thing, and

• (b) a person other than the party who applied for the witness summons makes an application under this rule,

rule 51(2) and (3) apply, with references to “the objection” read as references to the matters mentioned in paragraph (3)(b) or (4)(b) (as the case may be).

54

• (1) Where a rule or direction requires an application under this Part to be in writing, the application may be made orally with the leave of the judge advocate.

• (2) A party who seeks leave to make such an application orally must—

• (a) give as much notice as the urgency of his application permits to those on whom he would otherwise have served an application in writing; and

• (b) in doing so, explain the reasons for—

• (i) the application; and

• (ii) seeking leave to make the application orally.

55

• (1) If the judge advocate is satisfied by evidence on oath that—

• (a) a person is likely to be able to give material evidence or produce any document or other thing likely to be material evidence in the proceedings,

• (b) that it is in the interests of justice that the person should attend to give evidence or to produce the document or thing, and

• (c) it is probable that a witness summons issued under rule 50 or 52 would not procure his attendance,

the judge advocate may, instead of issuing a witness summons, issue a warrant to arrest that person and bring him before the court.

• (2) Where—

• (a) any person has failed to attend before the court in answer to a witness summons issued under rule 50 or 52,

• (b) the judge advocate is satisfied by evidence on oath that—

• (i) the person is likely to be able to give evidence likely to be material evidence or produce any document or other thing likely to be material evidence in the proceedings, and

• (ii) the person has been duly served with the witness summons and that a reasonable sum has been paid or tendered to him for costs and expenses, and

• (c) it appears to the judge advocate that there is no just excuse for the person's failure to attend,

the judge advocate may issue a warrant to arrest the person and bring him before the court.

• (3) Subject to paragraph (4), a warrant issued under this rule shall be addressed to—

• (a) one or more service policemen; or

• (b) one or more officers of a civilian police force.

• (4) A warrant issued under this rule may not be addressed to a service policeman unless it appears to the judge advocate that the person for whose arrest it is issued is subject to service law or is a civilian subject to service discipline.

• (5) Where a person has been arrested by an officer of a civilian police force under a warrant issued under this rule, he must be transferred to service custody as soon as is practicable.

• (6) Where a person has been arrested under a warrant issued under this rule and is in service custody—

• (a) he must as soon as is practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody until he can be brought before the court; and

• (b) if he has not been brought before a judge advocate for such a review within 48 hours of the arrest he must be released.

56

• (1) Paragraphs (2) to (5) apply where—

• (a) a person is brought before a judge advocate under rule 55(6); or

• (b) the keeping of a person in service custody has been authorised by an order under paragraph (2) and he is brought before a judge advocate before the expiry of the period for which it was so authorised.

• (2) The judge advocate may by order authorise the keeping (or further keeping) of the person in service custody if he is satisfied that there are substantial grounds for believing that, if released from service custody, the person would fail to attend the court as required.

• (3) The period for which the judge advocate may, by an order under paragraph (2), authorise the keeping of the person in service custody is such period, ending not later than 8 days after the day on which the order is made, as he considers appropriate in all the circumstances.

• (4) If the judge advocate makes no order under paragraph (2), the person must be released from service custody without delay; but this is subject to paragraph (5).

• (5) The judge advocate may require the person to comply, before release or later, with such requirements as appear necessary to secure his attendance before the court.

• (6) Where the keeping of the person in service custody is authorised by an order under paragraph (2), he must be released on the expiry of the period for which it was so authorised unless a judge advocate has made a further order under that paragraph.

• (7) Any requirement imposed by virtue of paragraph (5) may be varied or discharged by a judge advocate on application by the person or the Director.

• (8) Section 107(5) shall apply in relation to a requirement imposed by virtue of paragraph (5) as it applies in relation to a requirement imposed by virtue of section 107(3)(a).

• (9) A person guilty of an offence under section 107(5) by virtue of paragraph (8) shall be liable to a fine not exceeding level 4 on the standard scale.

57

• (1) Where any person is—

• (a) notified under rule 49 of the requirement to give evidence in any proceedings, or

• (b) served with a witness summons issued under rule 50 or 52,

there shall be paid or tendered to him at that time any expenses in respect of his attendance.

• (2) For the purpose of this rule—

• (a) the tender of a warrant or voucher entitling a person to travel free of charge shall constitute tender of his expenses in respect of any travelling required; and

• (b) the tender of a written undertaking by the court administration officer to defray any other expenses payable under these Rules shall constitute tender in respect of those expenses.

58

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;

• (c) subsections (5) and (8) were omitted; and

• (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

• (c) a transcript has been made of the sound recording,

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;

• (c) if served by the Director, must identify any witness whom he intends to call about the misconduct; and

• (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;

• (c) if made by the Director, must identify any witness whom he intends to call about the misconduct; and

• (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

• (c) section 117 of that Act (statement contained in a document),

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

• (c) the grounds on which he so objects.

• (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,

• (c) held or did not hold at any specified time any specified rank, rate or appointment in any of Her Majesty's forces,

• (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

• (c) any ship, train or aircraft,

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;

• (c) recall a witness;

• (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

• (c) an appeal against punishment.

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

• (c) address the court in mitigation of punishment.

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”;

• (c) for witnesses, “… the evidence I shall give shall be the truth, the whole truth, and nothing but the truth”; and

• (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

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).