The Armed Forces (Summary Appeal Court) Rules 2009

• (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

• (c) has a physical disability or is suffering from a physical disorder.

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;

• (c) the address of the premises where the recording was made, and the usual function of those premises;

• (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;

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

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

• (e) respecting the interests of witnesses, 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

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

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