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The Armed Forces (Court Martial) Rules 2009

Type Statutory-Instrument

Publication 2009-07-21

Last updated 2025-02-20

State In force

Department King's Printer of Acts of Parliament

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(1) Without prejudice to rule 73, 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 trial 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.

Proof by formal admission

76

(1) Without prejudice to rule 73, 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 a defendant’s counsel or solicitor were to his legal representative.

Use of documents to refresh memory

77

(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.

CHAPTER 2 — Evidence of bad character

Notice of intention to adduce evidence of a defendant's bad character

78

(1) Where, in trial proceedings—

(a) the Director intends to adduce evidence of a defendant’s bad character, or

(b) a defendant intends to adduce evidence of another defendant’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 charge to which the evidence relates.

(4) If served by a defendant, 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 defendant the previous convictions of the co-defendant 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.

Application to exclude evidence of a defendant's bad character

79

(1) An application under section 101(3) of the 2003 Act to exclude evidence of a defendant’s bad character in trial 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 78 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 78, 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.

Application for leave to adduce evidence of the bad character of a non-defendant

80

(1) An application for leave to give evidence in trial proceedings of the bad character of a person other than a defendant 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 charge to which the evidence relates.

(4) If made by a defendant, 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 defendant 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.

CHAPTER 3 — Hearsay evidence

Notice of intention to adduce hearsay evidence

81

(1) Where a party to trial proceedings proposes to adduce a hearsay statement, or (in the case of a defendant) 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 charge to which the evidence relates.

(4) Where a notice under this rule is served by a defendant, 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 82 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.

Counter-notice objecting to the admission of hearsay evidence

82

(1) Where a party serves a notice under rule 81 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 81;

(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 81.

CHAPTER 4 — Evidence of service matters

Evidence of enlistment

83

(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.

Evidence as to service etc

84

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.

Service records

85

(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.

Defence Council instructions, regulations and certificates

86

(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.

Standing or routine orders

87

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.

CHAPTER 5 — Expert evidence

Expert evidence

88

(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 defendant 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 defendants 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 defendants may give instructions to the expert.

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

(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 75) base an opinion or inference on the statement.

CHAPTER 6 — Special measures directions

Interpretation of Chapter 6

89

(1) In this Chapter—

“eligible witness” means a witness eligible for assistance by virtue of rule 90 or 91;

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

“sexual offence” means an offence under section 42 as respects which the corresponding offence under the law of England and Wales is— an offence under Part 1 of the Sexual Offences Act 2003[^f00012]; an offence of attempting or conspiring to commit such an offence; or an offence under Part 2 of the Serious Crime Act 2007[^f00013] (encouraging and assisting crime) where the offence (or one of the offences) which the offender intended or believed would be committed is an offence under Part 1 of the Sexual Offences Act 2003;

“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 92.

Witnesses eligible for assistance on grounds of age or incapacity

90

(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[^f00014];

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

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

91

(1) A witness (other than a defendant) 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.

(2) A witness is also eligible for assistance by virtue of this rule if—

(a) the proceedings are in respect of a sexual offence;

(b) the witness is a complainant in respect of that offence; and

Special measures available

92

(1) Where a witness (other than a defendant) is eligible for assistance by virtue of rule 90, 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 91, 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 a defendant is eligible for assistance by virtue of rule 90, 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

93

(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) Where there are two or more defendants—

(a) any reference to the defendant in the special measures provisions may be taken, in connection with the giving of a special measures direction, as a reference to all or any of the defendants, as the judge advocate may determine; and

(b) any such direction may be given on the basis of any such determination.

(5) A special measures direction may provide for one or more special measures to apply in combination with a direction under rule 18 (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.

(6) 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.

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

(8) 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

94

A special measures direction may not provide for the exclusion of persons under section 25 of the 1999 Act unless—

(a) the proceedings relate to a sexual offence; or

(b) it appears to the judge advocate that there are reasonable grounds for believing that any person other than a defendant has sought, or will seek, to intimidate the witness in connection with testifying in the proceedings.

Video recorded evidence in chief

95

(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 a defendant 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 98 has not been complied with to the satisfaction of the judge advocate.

(4) Paragraph (3) is without prejudice to rule 99 (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

96

(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

97

(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 a defendant 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 98(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 a defendant, 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

98

(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 each defendant 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 a defendant 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

99

(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 97(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 a defendant 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

100

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 any defendant.

PART 13 — TRIAL PROCEDURE

Opening addresses

101

Before the Director adduces any evidence in trial proceedings—

(a) the Director, and

(b) with leave of the judge advocate, any defendant,

may make an opening address.

Examination of witnesses

102

(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 prosecution; or

(f) permit a defendant to give evidence after calling another witness.

Presence of witnesses

103

(1) Except for a defendant 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.

Submission of no case to answer

104

(1) At the close of the case for the prosecution a defendant 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 38, 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 lay members to find the defendant not guilty of the charge.

(4) This rule is subject to section 6 of the Domestic Violence, Crime and Victims Act 2004[^f00015].

The case for the defence

105

(1) Where a defendant intends to adduce evidence as to fact (other than by giving evidence himself), he may make an opening address before adducing or giving evidence; but this is subject to paragraph (2).

(2) Where a defendant made an opening address under rule 101, he may not make another address under this rule without the leave of the judge advocate.

(3) Where a defendant gives evidence, he must do so before calling any other witness.

(4) Paragraph (3) is subject to rule 102(2).

Finding of not guilty before conclusion of the defence

106

(1) At any time after the close of the case for the prosecution, the lay members may find a defendant not guilty on a charge.

(2) The lay members may not make a finding under this rule before the summing-up unless the judge advocate has—

(a) invited the Director to address the court as to whether such a finding should be made; and

(b) invited the lay members to consider making such a finding.

Closing addresses

107

(1) This rule applies at the close of the case for all defendants.

(2) If any defendant has adduced evidence as to fact, or given evidence himself, the Director may make a closing address.

(3) Each defendant may then make a closing address; but a legal representative who represents more than one defendant may make only one closing address.

Summing up

108

(1) After any closing addresses, the judge advocate shall direct the lay members on the relevant law; and sum up the evidence.

(2) The judge advocate may direct the lay members that if they record a finding of guilty on one charge they need not record a finding on another charge.

Deliberation on findings

109

(1) If after they have withdrawn to deliberate on their finding the lay members require further direction on the law, they shall seek and be given further direction by the judge advocate in open court (subject to rule 152).

(2) The lay members may not separate, without the leave of the judge advocate, before all their findings have been announced.

(3) Where two or more of the lay members are subject to service law, the votes of those members on the finding on each charge shall be given in ascending order of rank or rate and seniority.

Announcement of findings

110

(1) The finding of the lay members on each charge shall be announced by the president of the board.

(2) Paragraph (1) is subject to any direction given under rule 108(2).

(3) If the judge advocate is satisfied that the findings announced are acceptable in law, the judge advocate and the president of the board shall sign a record of the findings.

(4) If the judge advocate is not so satisfied, he shall direct the lay members to withdraw and reconsider their findings.

(5) Where, in accordance with a direction given under rule 108(2), no finding is recorded on a charge, the judge advocate may direct that the charge is to lie on the file, not to be proceeded with without the leave of the court or the Appeal Court.

(6) Where no lay member is subject to service law, references in this rule to the president of the board are to be read as references to a lay member chosen by the lay members from among their number.

PART 14 — SENTENCING PROCEEDINGS

Application and interpretation of Part 14

111

(1) This Part applies in relation to any sentencing proceedings.

(2) In this Part—

“the offender” means any offender who falls to be sentenced in the proceedings; and

“the offence” means any offence for which the offender falls to be so sentenced.

Dispute on facts after plea of guilty

112

(1) Where, after the judge advocate has recorded a plea of guilty in respect of any charge, 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) In the case of an equality of votes, the court must find for the offender.

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

Pre-sentence report and previous convictions

113

(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 offender before the time appointed for the proceedings.

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

Information before sentencing

114

(1) Where—

(a) the offender was convicted on a plea of guilty (other than a plea offered in the course of a trial),

(b) the proceedings are on an appeal against a sentence imposed by the Service Civilian Court (other than an appeal against both conviction and sentence), or

(c) the offender was convicted in trial proceedings but previous sentencing proceedings in respect of him 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 offender’s age and rank or rate;

(b) the offender’s service record;

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

(d) any previous convictions of the offender for—

(i) service offences,

(ii) offences under the law of any part of the United Kingdom, or

(iii) relevant offences under the law of another member State,

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[^f00016];

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

(f) any period for which the offender has been in custody awaiting trial; and

(g) the offender’s pay, terminal benefits and future pension entitlements.

(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) The Director shall inform the court whether the offence is a relevant offence for the purposes of section 165 (sentencing powers following election for trial by the court).

(5) Where the court has power—

(a) to make an activation order in respect of the offender, or

(b) to deal with him under section 186(2) (offence during period of conditional discharge) or paragraph 23 of Schedule 8 to the 2003 Act (overseas community order in force),

the Director shall inform the court of that fact, of the previous offence by virtue of which the court has that power, and of the sentence passed for that offence.

(6) 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 (g) there were inserted “employment,”.

(7) Where the offender is a civilian subject to service discipline and has not formerly been subject to service law, paragraph (2) has effect as if—

(a) in sub-paragraph (a) the words “and rank or rate” were omitted;

(b) sub-paragraphs (b) and (c) were omitted;

(g) details of the offender’s employment (if any);

and

(d) after sub-paragraph (g) there were inserted—

(h) if the offender was under 18 years of age when convicted, whether he has a service parent or service guardian (within the meaning of section 233).

Offences taken into consideration

115

(1) The court may take into consideration any other service offence committed by the offender, of a similar nature to that for which he falls to be sentenced, if he so requests and the judge advocate so directs.

(2) A list of offences taken into consideration shall be signed by the offender and attached to the record of proceedings.

Mitigation of sentence

116

The offender may—

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

(b) produce to the court any document; and

Pronouncement of sentence

117

(1) The sentence shall be recorded in writing, dated and signed by the judge advocate and the president of the board.

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

(3) The president of the board shall pronounce sentence.

(4) With leave of the judge advocate, the president of the board may make additional remarks to the offender about—

(a) the effects of his offence on the service to which he belongs; and

(b) the likely effects of the sentence on his service career.

(5) Where there are no lay members, or none of the lay members is subject to service law—

(a) paragraph (1) shall have effect as if the words “and the president of the board” were omitted;

(b) in paragraph (3), the reference to the president of the board shall be read as a reference to the judge advocate; and

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

PART 15 — VARIATION PROCEEDINGS

Power to vary sentence

118

(1) In proceedings under this Part (“variation proceedings”), the court may vary a sentence imposed by it within the period of 56 days beginning with the day on which the sentence was imposed.

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

(3) A sentence varied under this rule shall take effect, as so varied, from the beginning of the day on which it was originally imposed, unless the court otherwise directs.

(4) In this rule—

(a) references to a sentence include any order made, or direction given, by the court when dealing with an offender; and

(b) references to the variation of a sentence include the variation or rescission of such an order or direction.

Direction that variation proceedings be held

119

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

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

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

(a) on the application of the Director or the offender; or

(b) of his 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;

(b) if made by the Director, must be served on the offender; and

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

Direction that variation proceedings be held without lay members

120

(1) Where a judge advocate directs under rule 119 that variation proceedings are to be held, he may direct that there are to be no lay members.

(2) A judge advocate may not give a direction under this rule unless 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 proceedings at the time and place appointed.

(4) Condition B is that, if—

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

(b) the sentence 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,

the offender would be unfairly prejudiced by the postponement.

(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 121(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 offender includes his attendance by live link, as defined by rule 18(3).

(6) Where a direction (“the original direction”) was given under rule 30 (additional lay members) in relation to the sentencing proceedings, it is to be assumed for the purposes of paragraph (4)(b) that—

(a) a direction would also be given under rule 30 in relation to the variation proceedings; and

(b) the number of lay members specified in that direction would be the same as that specified in the original direction.

(7) In this rule—

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

“the original lay members” means the persons who, at the time when the sentence that falls to be varied was imposed, were lay members for the sentencing proceedings;

“the sentencing proceedings” means the proceedings in which the sentence that falls to be varied was imposed.

Attendance of lay members by live link

121

(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 proceedings are being held, is able to see and hear, and to be seen and heard by, the 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 sentence

122

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

Announcement of sentence as varied

123

Where the court varies the sentence, sections 252 and 253(2) (duty to give reasons and explain sentence) and rule 117 (announcement of sentence) shall apply as they apply to the passing of a sentence.

Power to order offender's release from custody

124

(1) This rule applies where an offender is in custody by virtue of a custodial sentence or a sentence of service detention imposed by the court.

(2) If it appears to the judge advocate, within the period of 56 days beginning with the day on which the sentence was imposed—

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

(b) that the maximum term for which the court had power to impose such a sentence has expired,

the judge advocate may order that the offender be immediately released.

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

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

PART 16 — APPELLATE PROCEEDINGS

Notice of appeal

125

(1) An appeal under section 285 (appeals from the SCC) shall be brought by serving a written notice of appeal on the court administration officer.

(2) The court administration officer shall serve the notice on the Director.

Extension of initial period

126

(1) An application under section 285(3)(b) (extension of initial period for appeal) shall be made in writing to the court administration officer.

(2) The court administration officer shall forward the application to the Judge Advocate General and the Director.

Leave to appeal out of time

127

(1) An application for leave under section 285(4) (leave to appeal out of time) shall be made in writing to the court administration officer.

(2) Such an application must—

(a) state why the applicant did not appeal within the initial period (within the meaning of section 285); and

(b) be accompanied by the proposed notice of appeal.

(3) The court administration officer shall forward the application to the Judge Advocate General and the Director.

(4) The Judge Advocate General may—

(a) grant the application;

(b) inform the court administration officer that he is minded to dismiss the application without a hearing; or

(5) Where the Judge Advocate General is minded to dismiss the application without a hearing, the court administration officer shall notify the applicant in writing of that fact.

(6) Where the applicant is given notice under paragraph (5), the application shall be treated as dismissed unless the applicant gives notice in writing to the court administration officer, before the end of the period of 14 days beginning with the date of the notice under paragraph (5), that he requires a hearing of the application.

(7) There shall be a hearing of the application if—

(a) the Judge Advocate General directs a hearing; or

(b) the applicant requires a hearing under paragraph (6).

(8) A hearing of the application shall be before a judge advocate specified by the Judge Advocate General.

(9) At a hearing of the application—

(a) the applicant may address the judge advocate; and

(b) the Director may, with leave, address the judge advocate.

(10) Where, if the application were granted, section 286(5) would prohibit the Judge Advocate General from being a member of the court hearing the appeal, references to the Judge Advocate General in paragraphs (4) to (8) are to be read as references to the Vice Judge Advocate General.

Application of Act and Rules to appellate proceedings

128

(1) In relation to appellate proceedings, references in Part 7 of the 2006 Act to a defendant are to be read as references to an appellant.

(2) In relation to an appeal against conviction, Part 8 (preliminary proceedings) shall apply as it applies in relation to a charge allocated for Court Martial trial, with the following modifications—

(a) rule 45 (listing of initial preliminary proceedings) shall not apply, and the appellant shall not be re-arraigned on the charge on which he was convicted;

(b) rule 46 (listing of further preliminary proceedings) shall apply as if the word “further” were omitted wherever it appears; and

(3) In relation to appellate proceedings on an appeal against conviction, Parts 11 to 13 shall apply as they apply in relation to trial proceedings.

(4) In Parts 8 and 11 to 13 as they apply by virtue of this rule—

(a) references to a defendant are to be read as references to an appellant;

(b) references to the date on which a charge was brought are to be read as references to the date on which notice of appeal was given.

(5) Where two or more defendants were convicted in the same proceedings by the Service Civilian Court and both or all of them appeal against conviction, their appeals shall be heard together.

Abandonment of appeal

129

Where—

(a) an appellant fails to appear before the court at the time appointed for the commencement or resumption of the appellate proceedings, and

(b) the judge advocate considers that there is no reasonable explanation for the failure to appear,

the judge advocate may direct that the appeal be treated as abandoned.

PART 17 — ACTIVATION PROCEEDINGS

Interpretation of Part 17

130

In this Part—

“the relevant facts”, “the original sentence”, “the relevant period”, “the new offence”, “summons”, “warrant” and “relevant order” have the meanings given by— rule 131(2), where rule 131 applies; rule 132(2), where rule 132 applies; rule 133(2), where rule 133 applies;

“the offender” means the person convicted of the new offence.

Offence committed during operational period of suspended sentence of imprisonment

131

(1) This rule applies where the court administration officer is notified of the facts mentioned in paragraph 12(2A)(a) and (b) of Schedule 12 to the 2003 Act, as substituted by paragraph 8(1) of Schedule 7 to the 2006 Act.

(2) Where this rule applies, in this Part—

“the relevant facts” means the facts mentioned in those paragraphs, as so substituted;

“the original sentence” means the suspended sentence mentioned in paragraph 12(2A) of Schedule 12 to the 2003 Act, as substituted by paragraph 8(1) of Schedule 7 to the 2006 Act;

“the relevant period” means the operational period of that sentence;

“the new offence” means the offence mentioned in that sub-paragraph, as so substituted;

“summons” means a summons under that sub-paragraph, as so substituted;

“warrant” means a warrant under that sub-paragraph, as so substituted;

“relevant order” means an order under paragraph 8(2) of Schedule 12 to the 2003 Act in respect of the original sentence.

Offence committed during operational period of suspended sentence of service detention

132

(1) This rule applies where the court administration officer is notified of the facts mentioned in section 191(2)(a) and (b) and (6)(b).

(2) Where this rule applies, in this Part—

“the relevant facts” means the facts mentioned in those paragraphs;

“the original sentence” means the suspended sentence of service detention mentioned in section 191(2)(a);

“the relevant period” means the operational period of that sentence;

“the new offence” means the offence mentioned in section 191(2)(b);

“summons” means a summons under section 191(6);

“warrant” means a warrant under that subsection;

“relevant order” means an order under section 191(3) in respect of the original sentence.

Offence committed during release period of detention and training order

133

(1) This rule applies where the court administration officer is notified of the facts mentioned in section 214(7)(a) to (c).

(2) Where this rule applies, in this Part—

“the relevant facts” means the facts mentioned in those paragraphs;

“the original sentence” means the order under section 211 mentioned in section 214(1); and

“the relevant period” means the period between the offender’s release from custody under that order and the date on which the term of the order ends;

“the new offence” has the same meaning as in section 214;

“summons” means a summons under section 214(7);

“warrant” means a warrant under that subsection;

“relevant order” means an order under section 214(3) in respect of the original sentence.

Application for activation proceedings

134

(1) This rule applies where any of rules 131 to 133 applies.

(2) The court administration officer shall notify the Director that this rule applies, and forward to the Director such of the following as is not already in the Director’s possession—

(a) the record of the proceedings in which the original sentence was passed;

(b) information concerning—

(i) the new offence, and any other offence proved to have been committed by the offender during the relevant period; and

(ii) the sentence passed for each such offence; and

(i) a relevant order in respect of the original sentence; or

(ii) where rule 133 applies, an order under section 105(2) of the Powers of Criminal Courts (Sentencing) Act 2000[^f00017] in respect of the original sentence.

(3) The Director may give written notice to the court administration officer and the offender that he requires activation proceedings to be held.

(4) A notice under paragraph (3) must be given within 28 days of the court administration officer’s compliance with paragraph (2).

(5) Where the Director gives notice under paragraph (3), the court administration officer shall forward to the Judge Advocate General the documents and information mentioned in paragraph (2)(a) to (c).

(6) The Judge Advocate General shall—

(a) issue a summons requiring the offender to appear before the court for activation proceedings; or

(b) issue a warrant for the offender’s arrest.

(7) The Judge Advocate General may delegate his functions under this rule to any judge advocate.

Warrant for offender's arrest

135

(1) This rule applies where the Judge Advocate General issues a warrant for the offender’s arrest.

(2) The warrant shall be addressed to—

(a) one or more service policemen; or

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

(3) The warrant may not be addressed to a service policeman unless the offender is subject to service law or is a civilian subject to service discipline.

(4) The warrant shall state the relevant facts.

(5) Where the warrant is addressed to an officer of a civilian police force, it shall state that the offender must be transferred to service custody as soon as is practicable after arrest.

(6) Where the offender is arrested under the warrant, or, if arrested by an officer of a civilian police force, is transferred to 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;

(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;

(d) the offender shall be brought before the court at that time and place, unless he has been released from custody under rule 136(4).

Review of custody

136

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

(a) the offender is brought before a judge advocate under rule 135(6); or

(b) the keeping of the offender 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 offender in service custody if 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 offender in service custody is such period, ending not later than 8 days after the day on which the order is made, as the judge advocate considers appropriate in all the circumstances.

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

(5) The judge advocate may require the offender 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 offender 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 offender or the Director.

(8) Section 107(5) and (6) shall apply in relation to a requirement imposed by virtue of paragraph (5) as they apply in relation to a requirement imposed by virtue of section 107(3)(a).

Disclosure by Director

137

(1) This rule applies where activation proceedings are to be held.

(2) As soon as is reasonably practicable, and in any event not less than 7 days before the time appointed for the commencement of the proceedings, the Director shall serve on the offender such of the information and documents mentioned in rule 134(2) as are in his possession.

Procedure in activation proceedings

138

(1) This rule applies where the offender appears or is brought before the court for activation proceedings.

(2) The judge advocate shall ask the offender whether he admits the relevant facts.

(3) If the offender does not admit the relevant facts—

(a) the Director may adduce evidence of them;

(b) the offender may cross-examine any witness called by the Director, and may give evidence or call witnesses; and

(4) Paragraphs (5) to (9) apply where—

(a) the offender admits the relevant facts, or

(b) the judge advocate determines that the relevant facts are proved.

(5) The Director shall address the court on the circumstances of the offence for which the original sentence was passed, and the new offence.

(6) The offender may adduce evidence as to his character, and such evidence may be given orally or in writing.

(7) The offender may address the court as to—

(a) whether the court should make a relevant order; and

(b) the terms in which any such order should be made.

(8) The court’s decision as to whether to make a relevant order, and if so in what terms, shall be determined by a majority of the votes of the members of the court.

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

(10) Where the court makes a relevant order, rule 117 shall apply in relation to the making of the order as it applies in relation to the passing of a sentence, with the omission of paragraph (2).

PART 18 — ANCILLARY PROCEEDINGS

CHAPTER 1 — Community order proceedings

Application and interpretation of Chapter 1

139

(1) This Chapter applies where an overseas community order made by the court is in force.

(2) In this Chapter—

“the order” means the overseas community order;

“the offender” means the person in respect of whom the order was made.

Breach of requirements: application for summons or warrant

140

(1) An application by the responsible officer for a summons or a warrant under paragraph 8 of Schedule 8 to the 2003 Act shall be made in writing to the court administration officer, specifying—

(a) the requirement of the order with which the offender is alleged to have failed to comply;

(b) the respect in which, and the date on which (or the dates between which) he is alleged to have failed to comply with that requirement;

(c) whether he has within the previous twelve months been given a warning under paragraph 5 of Schedule 8 to the 2003 Act in respect of the order, and if so when and in what terms; and

(d) any grounds on which, to the responsible officer’s knowledge, the offender is likely to rely as constituting a reasonable excuse for the alleged failure to comply.

(2) The court administration officer shall forward the application to the Judge Advocate General.

(3) The Judge Advocate General may—

(a) issue a summons under paragraph 8 of Schedule 8 to the 2003 Act requiring the offender to appear before the court for proceedings under paragraph 10 of that Schedule;

(b) issue a warrant under paragraph 8 of that Schedule for the offender’s arrest;

(d) direct a hearing of the application.

(4) If the Judge Advocate General directs a hearing of the application, the court administration officer shall notify the responsible officer of the time and place appointed for the hearing.

Breach of requirements: arrest under warrant

141

(1) This rule applies where the Judge Advocate General issues a warrant under paragraph 8 of Schedule 8 to the 2003 Act for the offender’s arrest.

(2) The warrant shall be addressed to—

(a) one or more service policemen; or

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

(3) The warrant may not be addressed to a service policeman unless the offender is a civilian subject to service discipline.

(4) The warrant shall state the matters mentioned in rule 140(1)(a) and (b).

(5) Where the warrant is addressed to an officer of a civilian police force, it shall state that the offender must be transferred to service custody as soon as practicable after arrest.

(6) Where the offender is arrested under the warrant, or, if arrested by an officer of a civilian police force, is transferred to 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.

(7) Rule 136 (review of custody) applies in relation to an offender brought before a judge advocate under paragraph (6) as it applies in relation to an offender brought before a judge advocate under rule 135(6).

(8) Where the offender has been arrested under a warrant—

(a) the court administration officer shall appoint a time and place for proceedings under paragraph 10 of Schedule 8 to the 2003 Act; and

(b) the offender shall be brought before the court at that time and place, unless he has been released from custody under rule 136(4).

Revocation of order with or without re-sentencing

142

(1) An application under paragraph 14 of Schedule 8 to the 2003 Act must be made in writing to the court administration officer, specifying—

(a) whether the applicant wants the court—

(i) to revoke the order; or

(ii) both to revoke the order and to deal with the offender for the offence in respect of which the order was made; and

(b) the grounds on which the application is made.

(2) The court administration officer shall forward the application to the Judge Advocate General.

(3) If the application is made by the offender, the Judge Advocate General may—

(a) revoke the order;

(b) dismiss the application; or

(4) If the application is made by the responsible officer, the Judge Advocate General may—

(a) dismiss the application; or

(b) direct a hearing of the application, and issue a summons under paragraph 14(5) of Schedule 8 to the 2003 Act requiring the offender to appear at the hearing.

(5) If the Judge Advocate General directs a hearing of the application, the court administration officer shall notify the responsible officer (and, if he is the applicant, the offender) of the time and place appointed for the hearing.

(6) A warrant for the offender’s arrest, issued under paragraph 14(5) of Schedule 8 to the 2003 Act—

(a) shall be addressed to—

(i) one or more service policemen; or

(ii) one or more officers of a civilian police force;

(b) shall state that the offender has failed to appear in answer to a summons issued under paragraph 14(5) of Schedule 8 to the 2003 Act; and

(c) if addressed to an officer of a civilian police force, shall state that the offender must be transferred to service custody as soon as is practicable after arrest.

(7) The warrant may not be addressed to a service policeman unless the offender is a civilian subject to service discipline.

(8) Where the offender is arrested under such a warrant, or, if arrested by an officer of a civilian police force, is transferred to 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.

(9) Rule 136 (review of custody) applies in relation to an offender brought before a judge advocate under paragraph (8) as it applies in relation to an offender brought before a judge advocate under rule 135(6).

(10) Where the offender has been arrested under a warrant—

(a) the court administration officer shall appoint a time and place for the hearing of the application; and

(b) the offender shall be brought before the court at that time and place, unless he has been released from custody under rule 136(4).

Amendment of requirements

143

(1) An application under paragraph 17 of Schedule 8 to the 2003 Act must be made in writing to the court administration officer, specifying—

(a) the amendment of the order that the applicant wants the court to make; and

(b) the grounds on which the application is made.

(2) The court administration officer shall forward the application to the Judge Advocate General.

(3) The Judge Advocate General may—

(a) make the proposed amendment (subject to paragraph 17(2) of Schedule 8 to the 2003 Act);

(b) dismiss the application; or

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