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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

Source legislation.gov.uk

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

Extension of unpaid work requirement

144

(1) An application under paragraph 20 of Schedule 8 to the 2003 Act must be made in writing to the court administration officer, specifying—

(a) the period for which the applicant wants the court to extend the period of twelve months specified in section 200(2) of that Act; 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) grant the application;

(b) extend the period specified in section 200(2) of the 2003 Act by a period shorter than that proposed in the application;

(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 and the offender of the time and place appointed for the hearing.

CHAPTER 2 — Other ancillary proceedings

Review of service compensation order

145

(1) An application to the court under section 177 (application for discharge of service compensation order or reduction of amount payable)—

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

(b) shall be served on the person in whose favour the order was made;

(i) to discharge the order; or

(ii) to reduce the amount which remains to be paid, and if so by how much;

(d) shall specify which of the grounds mentioned in section 177(3) applies; and

(e) shall state that the application may be granted without a hearing if the person in whose favour the order was made does not serve notice on the court administration officer, within 14 days of being served with the application, that he opposes it.

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

(3) The Judge Advocate General may—

(a) grant the application;

(b) exercise the court’s powers under section 177 in a way other than that proposed in the application;

(d) direct a hearing of the application.

(4) The Judge Advocate General may not (without a hearing) grant the application or otherwise exercise the court’s powers under section 177 unless—

(a) at least 14 days have elapsed since the application was served on the person in whose favour the order was made; and

(b) that person has not served notice on the court administration officer that he opposes the application.

(5) Where the Judge Advocate General (without a hearing) grants the application, otherwise exercises the court’s powers under section 177 or dismisses the application, the court administration officer shall give notice in writing of that decision to the applicant and the person in whose favour the order was made.

(6) Where the Judge Advocate General directs a hearing of the application, the court administration officer shall notify the applicant, and the person in whose favour the order was made, of the time and place appointed for the hearing.

Application for time to pay financial penalty

146

(1) An application to the court under section 251(3) (application for order allowing time for payment of amount due in respect of fine or service compensation order, or directing payment by instalments)—

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

(b) shall state whether the applicant wishes the court—

(i) to allow time for payment of the amount due in respect of the fine or service compensation order, and if so how much time; or

(ii) to direct payment of that amount by instalments, and if so by instalments of what amounts and payable on what dates;

(d) if made in respect of a service compensation order—

(i) shall be served on the person in whose favour that order was made; and

(ii) shall state that it may be granted without a hearing if that person does not serve notice on the court administration officer, within 14 days of being served with the application, that he opposes it.

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

(3) The Judge Advocate General may—

(a) make the proposed, or any other, order under section 251;

(b) dismiss the application; or

(4) But the Judge Advocate General may not (without a hearing) make an order under section 251 in respect of a service compensation order unless—

(a) at least 14 days have elapsed since the application for the order was served on the person in whose favour the service compensation order was made; and

(b) that person has not served notice on the court administration officer that he opposes the application.

(5) Where the Judge Advocate General (without a hearing) makes an order under section 251 or dismisses the application, the court administration officer shall give notice in writing of that decision to—

(a) the applicant; and

(b) where the application is in respect of a service compensation order, the person in whose favour that order was made.

(6) Where the Judge Advocate General directs a hearing of the application, the court administration officer shall notify—

(a) the applicant, and

(b) where the application is in respect of a service compensation order, the person in whose favour that order was made,

of the time and place appointed for the hearing.

(7) This rule shall apply in relation to an application to the court under section 251(4) (application for variation of order under section 251) as if for paragraph (1)(b) there were substituted—

(b) shall state the respects in which the applicant wishes the court to vary the order under section 251;

Remission of fine

147

(1) The court’s power to remit the whole or part of a fine under section 267 may be exercised—

(a) on an application to the court under section 251(3) or (4) (whether at a hearing under rule 146 or otherwise); or

(b) on an application under this rule.

(2) An application under this rule—

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

(b) shall specify those financial circumstances of the applicant of which the court was unaware when it fixed the amount of the fine; and

(c) shall include an explanation for the applicant’s failure to co-operate with the court in its inquiry under section 249.

(3) The court administration officer shall forward the application to the judge advocate for the proceedings in which the fine was imposed.

(4) The judge advocate may—

(a) exercise any of the court’s powers under section 267;

(b) dismiss the application; or

(5) Where, without a hearing, the judge advocate exercises any of the court’s powers under section 267 or dismisses the application, the court administration officer shall notify the applicant in writing of the judge advocate’s decision.

(6) Where the judge advocate directs a hearing of the application, the court administration officer shall notify the applicant of the time and place appointed for the hearing.

Remission of case by Appeal Court for consideration of service restraining order

148

(1) This rule applies where the Appeal Court allows an appeal against conviction but remits the case under section 230(3) for the court to consider whether to proceed under section 229 (service restraining orders).

(2) The court administration officer shall appoint a time and place for proceedings under section 229.

(3) Any person to whom notice of the proceedings is given is entitled to be heard at the proceedings.

(4) The person whose appeal was allowed need not attend the proceedings, but the court may make an order under section 229 in his absence.

Variation or revocation of service restraining order

149

(1) An application under section 232(1) for the variation or revocation of a service restraining order—

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

(b) shall specify whether the applicant wishes the court—

(i) to revoke the order; or

(ii) to vary the order, and if so how; and

(2) The court administration officer shall forward the application to the judge advocate for the proceedings in which the order was made.

(3) The judge advocate may—

(a) dismiss the application; or

(b) direct a hearing of the application.

(4) Where the judge advocate dismisses the application without a hearing, the court administration officer shall notify the applicant in writing of the judge advocate’s decision.

(5) Where the judge advocate directs a hearing of the application, the court administration officer shall notify—

(a) the applicant, and

(b) every other person mentioned in the order,

of the time and place appointed for the hearing.

(6) In this rule “the order” means the order under section 229 as respects which the application is made.

Variation or revocation of order for recognizance

150

(1) An application to the court under section 235(4) for the variation or revocation of an order for a service parent or guardian to enter into a recognizance—

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

(b) shall specify whether the applicant wishes the court—

(i) to revoke the order; or

(ii) to vary the order, and if so how; and

(2) The court administration officer shall forward the application to the judge advocate for the proceedings in which the order was made.

(3) The judge advocate may—

(a) vary or revoke the order;

(b) dismiss the application; or

(4) Where, without a hearing, the judge advocate varies or revokes the order or dismisses the application, the court administration officer shall notify the applicant in writing of the judge advocate’s decision.

(5) Where the judge advocate directs a hearing of the application, the court administration officer shall notify the applicant of the time and place appointed for the hearing.

(6) In this rule “the order” means the order under section 233 as respects which the application is made.

Certification of contempt of court

151

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

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

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

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

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

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

(5) In this rule—

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

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

PART 19 — RESTRICTIONS ON PUBLIC ACCESS AND REPORTING

Proceedings in camera

152

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

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

(a) likely to abandon the proceedings, or

(b) unlikely to bring comparable proceedings in future,

lest information useful to an enemy be disclosed, or national security endangered.

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

(4) Where an order is made under this rule—

(a) the court administration officer shall immediately cause a copy of the order to be prominently displayed at the place appointed for the proceedings; and

(b) the proceedings (or the part of the proceedings as respects which the order is made) shall not commence until—

(i) at least 24 hours after the making of the order; and

(ii) if an application for leave to appeal against the order has been made, the dismissal of the application or the determination or abandonment of the appeal (as the case may be).

(5) Section 158 (open court) shall not apply in relation to—

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

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

Withholding of matter from the public in proceedings before the court

153

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

Appeals

154

A person aggrieved may appeal to the Appeal Court, with the leave of that court, against—

(a) any order or direction restricting the access of the public to the whole or any part of any proceedings; and

(b) any order or direction restricting the publication of any report of the whole or any part of a trial or any such ancillary proceedings.

PART 20 — CONSEQUENCES OF ELECTION FOR COURT MARTIAL TRIAL

Interpretation

155

In this Part—

“election charge” means a charge as regards which an election for Court Martial trial is made under section 129 (including a charge as regards which an election in respect of another charge takes effect by virtue of section 129(3));

“relevant”, in relation to an offence, means relevant for the purposes of section 165 (sentencing powers of Court Martial where election for trial by that court).

Charge referred to Director following election on another charge

156

(1) Where—

(a) a person makes an election under section 129,

(b) another charge brought against the person is, at the time of the election, regarded for the purposes of Part 5 of the 2006 Act as allocated for summary hearing,

(d) the person’s commanding officer refers the other charge to the Director under section 123(2)(e) without giving the person the opportunity to make an election under section 129 in respect of it, and

(e) the court convicts or acquits the person of the offence to which the other charge relates,

that offence is relevant.

(2) Where—

(a) a charge is in respect of an offence which, if the defendant were convicted or acquitted of it, would be relevant by virtue of this rule,

(b) another charge (“the new charge”) is brought under section 125 in addition to the charge, or substituted for it, and

that offence is relevant.

Powers of the Director

157

(1) This rule applies where a relevant charge is allocated for Court Martial trial.

(2) In this rule, “relevant charge” means a charge in respect of an offence which would be a relevant offence if the defendant were convicted or acquitted of it.

(3) The Director may not, without the written consent of the defendant, substitute under section 125(2)(b)—

(a) a charge in respect of an offence other than one that may be dealt with at a summary hearing (within the meaning of section 53); or

(b) a charge which section 54 would have prevented the defendant’s commanding officer from hearing summarily (if no election under section 129 had been made, and the officer had made the substitution but had not obtained the permission of higher authority to hear the charge).

(4) The Director may not, without the written consent of the defendant, bring under section 125(2)(c) a charge in addition to the relevant charge.

Sentence where charge added to, or substituted for, election charge

158

Where—

(a) the court convicts a person of an offence which is relevant by virtue of section 165(1)(b) (charges brought in addition to, or substituted for, an election charge), and

(b) section 165(4) does not apply,

the sentence passed in respect of the offence must be such that the person’s commanding officer could have awarded the punishments awarded by that sentence if he had heard the election charge summarily and had recorded a finding that it had been proved.

Sentence where charge referred following election on another charge

159

(1) Where—

(a) the court convicts a person of an offence which is relevant by virtue of rule 156, and

(b) section 165(4) does not apply,

the sentence passed in respect of the offence must be such that the person’s commanding officer could have awarded the punishments awarded by that sentence if he had heard the non-election charge summarily and had recorded a finding that it had been proved.

(2) In this rule “the non-election charge” means the charge referred as mentioned in rule 156(1)(d).

Multiple relevant offences: application of section 165(4)

160

(1) This rule applies where the court convicts a person of two or more relevant offences.

(2) Where any of the offences is relevant by virtue of section 165(1)(b), the charge in respect of it is to be treated for the purposes of section 165(4) as if, had no election under section 129 been made, the charge would have been heard summarily at the hearing at which the election charge would have been heard if no such election had been made.

(3) Where—

(a) the offences are relevant by virtue of rule 156(1), and

(b) the charges in respect of them would have been heard summarily together if they had not been referred as mentioned in rule 156(1)(d),

those charges are to be treated for the purposes of section 165(4) as if they would have been heard summarily together if no election under section 129 had been made.

(4) Where any of the offences is relevant by virtue of rule 156(2)—

(a) paragraph (3) applies as if the offence were relevant by virtue of rule 156(1); and

(b) for the purposes of paragraph (3)(b) the charge in respect of the offence is to be treated as a charge which, had it not been referred as mentioned in rule 156(1)(d), would have been heard summarily at the hearing at which the non-election charge would have been heard if it had not been so referred.

(5) In paragraph (4) “the non-election charge” means the charge referred as mentioned in rule 156(1)(d).

Sentence for multiple relevant offences

161

(1) This rule applies where section 165(4) applies.

(2) The relevant offences mentioned in section 165(4) (“the joined offences”) shall for the purposes of section 255 (individual sentence for each offence) be regarded as a single offence, and the court shall accordingly pass a single sentence in respect of them.

(3) Paragraphs (4) and (5) apply where the joined offences are relevant by virtue of section 165(1)(a) or (b).

(4) If there was one election charge, the sentence must be such that the offender’s commanding officer could have awarded the punishments awarded by the sentence if he had heard the election charge summarily and had recorded a finding that it had been proved.

(5) If there were two or more election charges, the sentence must be such that the offender’s commanding officer could have awarded the punishments awarded by the sentence if he had heard the election charges summarily, together, and had recorded findings that they had been proved.

(6) Paragraphs (7) and (8) apply where the joined offences are relevant by virtue of rule 156.

(7) If there was one non-election charge, the sentence must be such that the offender’s commanding officer could have awarded the punishments awarded by the sentence if he had heard the non-election charge summarily and had recorded a finding that it had been proved.

(8) If there were two or more non-election charges, the sentence must be such that the offender’s commanding officer could have awarded the punishments awarded by the sentence if he had heard the non-election charges summarily, together, and had recorded findings that they had been proved.

(9) In relation to the sentence, sections 242 (service detention: general restriction), 243 (length of term of service detention) and 248 (forfeiture of seniority and reduction in rank or disrating) shall apply as if the sentence were being passed by an officer at a summary hearing.

(10) In this rule—

“non-election charge” means a charge referred to the Director in such circumstances that the offence to which it relates would be a relevant offence by virtue of rule 156(1) if the defendant were convicted or acquitted of it;

“the sentence” means the sentence passed in respect of the joined offences.

Multiple relevant offences: powers of Appeal Court

162

(1) In a case in which the court passed a single sentence in respect of two or more offences by virtue of rule 161, the 1968 Act is modified as follows.

(2) Where section 13[^f00018] (power to re-sentence when some but not all convictions successfully appealed) applies but the appellant remains convicted of two or more of the joined offences, those joined offences of which he remains convicted are to be treated for the purposes of section 13(2) as a single offence.

(3) Where section 14 or 14A[^f00019] (substitution of conviction on different charge) applies in relation to a conviction of any of the joined offences, subsection (2) of that section has effect as if the reference in paragraph (b) to a sentence that the Court Martial would have had power to pass in respect of the offence mentioned in subsection (1)(b) (“the other offence”) were to a sentence which that court would have had power to pass, in respect of the other offence and those of the joined offences of which the appellant remains convicted, if—

(a) it had convicted him of the other offence; and

(b) the other offence were one of the joined offences.

(4) Section 16A(2)[^f00020] (powers of Appeal Court on appeal against sentence) has effect as if the reference in paragraph (b) to the offence were to the joined offences.

(5) In this rule “the joined offences” has the same meaning as in rule 161.

Offences associated with a relevant offence

163

Where the court sentences an offender for—

(a) a relevant offence with which another offence (whether or not a relevant offence) is associated, or

(b) an offence with which a relevant offence is associated,

for the purposes of Part 9 of the 2006 Act the offences shall be regarded as not being associated with one another.

Activation of suspended sentence of detention

164

(1) This rule applies where—

(a) the court makes an order under section 191(3) (activation of suspended sentence of service detention) by virtue of having convicted a person of a relevant offence; and

(b) the sentence in respect of which the order is made was passed by an officer or the Summary Appeal Court.

(2) The term of the suspended sentence as it takes effect by virtue of the order must not exceed 28 days unless the offender’s commanding officer would have had extended powers for the purposes of section 194 if no election under section 129 had been made.

(3) Paragraph (4) applies where—

(a) the court awards a term of service detention in respect of the relevant offence, or (by virtue of rule 161) in respect of the relevant offence and one or more other offences; and

(b) the order provides for the suspended sentence to take effect from the end of the term so awarded.

(4) The aggregate of the terms of the two sentences—

(a) must not exceed 28 days unless the offender’s commanding officer would have had extended powers for the purposes of section 194 if no election under section 129 had been made; and

(b) must not exceed 90 days in any event.

Service restraining orders

165

The court may not make a service restraining order in relation to a person by virtue of having convicted or acquitted him of a relevant offence.

Review of unduly lenient sentence

166

In section 273(1)(a) (review of unduly lenient sentence by Appeal Court) the reference to an offence under section 42 does not include a relevant offence.

PART 21 — TRANSITORY AND TRANSITIONAL PROVISIONS

Supreme Court of Northern Ireland

167

Until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005[^f00021] comes into force, the reference in rule 39(2)(c) to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland.

Transitional

168

Schedule 2 shall have effect.

SCHEDULE 1 — OATHS AND AFFIRMATIONS

1

The words prescribed are—

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

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

(c) for lay members in other proceedings, “…I will duly administer justice according to law and without partiality, favour or affection; and I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of the Court Martial, unless required to do so in due course of law”;

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

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

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

SCHEDULE 2 — TRANSITIONAL PROVISIONS

PART 1 — GENERAL

Interpretation

1

(1) In this Schedule—

“AA 1955” means the Army Act 1955 ;

“AFA 1955” means the Air Force Act 1955 ;

“the Army Rules” means the Courts-Martial (Army) Rules 2007 ;

“commencement” means the time at which these Rules come into force;

“court-martial rules” means the RN Rules, the Army Rules and the RAF Rules (or any of them);

“NDA 1957” means the Naval Discipline Act 1957 ;

“preliminary hearing” means a preliminary hearing held under court-martial rules;

“the RAF Rules” means the Courts-Martial (Royal Air Force) Rules 2007 ;

“the RN Rules” means the Courts-Martial (Royal Navy) Rules 2007 ;

“the SDAs” means AA 1955, AFA 1955 and NDA 1957;

“SDA compensation order” means a compensation order under paragraph 11(1) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957;

“SDA offence” means any of the following—any offence under Part 2 of AA 1955 or AFA 1955;any offence under Part 1 of NDA 1957;an offence under section 47K of that Act;an offence under section 18 or 20 of the Armed Forces Act 1991 committed before commencement;an offence under any of sections 95 to 97 of the Reserve Forces Act 1996 committed before commencement;an offence under paragraph 5(1) of Schedule 1 to that Act committed before commencement by a person within sub-paragraph (2) below;

“stoppages” has the same meaning as in AA 1955, AFA 1955 or NDA 1957 (as the case may be).

(2) A person is within this sub-paragraph if—

(a) after committing the offence and before commencement, he became a member of a reserve force and—

(i) he remained such a member until commencement; or

(ii) immediately before commencement, he was subject to military law, air-force law or NDA 1957; or

(b) after commencement, he becomes a member of the reserve forces.

Record of court-martial proceedings

2

(1) Rule 23(5) to (8) shall apply in relation to the record of—

(a) the proceedings of a court-martial, and

(b) a preliminary hearing,

with the following modifications.

(2) In paragraph (5)—

(a) the reference to exhibits retained under rule 24 is to be read as a reference to exhibits retained under rule 62(3) of the RN Rules or rule 65(3) of the Army Rules or the RAF Rules; and

(b) the reference to the court administration officer is to be read as a reference to the court administration officer within the meaning of AA 1955, AFA 1955 or NDA 1957 (as the case may be).

(3) Paragraph (5) shall have effect as if for sub-paragraphs (a) to (c) there were substituted “ the conclusion of the proceedings of the court-martial (or, in relation to the record of a preliminary hearing which was not followed by proceedings of a court-martial, the conclusion of the last preliminary hearing in the case) ”.

(4) In paragraph (7)—

(a) references to proceedings (or part of proceedings) held in camera include a preliminary hearing (or part of such a hearing) in relation to which the judge advocate gave a direction under rule 34(1) of the RN Rules or rule 37(1) of the Army Rules or the RAF Rules; and

(b) the reference to proceedings in relation to which a direction under rule 47 was given is to be read as a reference to a preliminary hearing held under rule 35 of the RN Rules or rule 38 of the Army Rules or the RAF Rules.

Persons ineligible for membership in particular circumstances

3

(1) In rule 32(6), the reference to any previous proceedings includes proceedings under any of the SDAs.

(2) In rule 32(10), the reference to a person who at any time was not subject to service law applies only in relation to a time after commencement.

(3) In relation to a person who at any time before commencement was not subject to military law, air-force law or NDA 1957, references in rule 32 to a unit in which the person was at that time serving are to be read as references to a unit to which he was at that time attached.

PART 2 — STEPS TAKEN BEFORE COMMENCEMENT

Service of documents

4

Any document served on a person before commencement, which would have been served on him in accordance with any provision of these Rules if that provision had then been in force, is to be treated as having been served on him in accordance with that provision.

Court administration officers

5

Anything done before commencement by a court administration officer within the meaning of any of the SDAs, which would have been done in accordance with any provision of these Rules if it had been done by the court administration officer within the meaning of the 2006 Act and that provision had then been in force, is to be treated as having been done by the court administration officer in accordance with that provision.

Prosecuting officers

6

Anything done before commencement by—

(a) the prosecuting authority for the Royal Navy, the Army or the Royal Air Force, or

(b) a prosecuting officer (within the meaning of any of the SDAs),

which would have been done in accordance with any provision of these Rules if it had been done by the Director and that provision had then been in force, is to be treated for the purpose of these Rules as having been done by the Director in accordance with that provision.

Legal representatives

7

(1) Anything done before commencement by a person's legal representative within the meaning of court-martial rules, which would have been done in accordance with any provision of these Rules if it had been done by the person's legal representative within the meaning of these Rules and that provision had then been in force, is to be treated for the purpose of these Rules as having been done by the person's legal representative in accordance with that provision.

(2) A person who, immediately before commencement, was a person's legal representative (within the meaning of court-martial rules) is to be treated as having been appointed under rule 39.

Arraignment

8

Where—

(a) a defendant was arraigned on a charge under section 91A(2) of AA 1955 or AFA 1955, or section 58A(2) of NDA 1957, and

(b) the charge is allocated for Court Martial trial,

the defendant is to be regarded for the purposes of these Rules as having been arraigned, and as having pleaded not guilty to the charge, in preliminary proceedings.

Directions etc

9

(1) A direction, order or ruling given or made in a preliminary hearing by the judge advocate (within the meaning of court-martial rules) has effect in related proceedings as if made in preliminary proceedings by the judge advocate for those proceedings.

(2) Proceedings are “related proceedings” in relation to a preliminary hearing if, had the hearing been preliminary proceedings, they would have been related proceedings in relation to those proceedings.

(3) A summons issued under court-martial rules shall have effect as if issued under these Rules.

(4) A direction given before commencement which, had it been given after commencement, would have been a direction under rule 30 (additional lay members), has effect as if given under that rule.

(5) In rule 50(1) (appeals from preliminary proceedings) the reference to preliminary proceedings includes a preliminary hearing.

(6) In rule 154 (appeals from orders restricting public access etc.) references to an order or direction include an order made, or a direction given, by—

(a) a court-martial; or

(b) a judge advocate in a preliminary hearing.

PART 3 — EVIDENCE

Proof by written statement

10

The reference in rule 75(1)(b) to a person subject to service law or a civilian subject to service discipline is to be read, in relation to a statement made before commencement, as a reference to a person who at the time of making the statement was a person mentioned in section 99A(2)(b) of AA 1955.

Evidence of enlistment or entry for service

11

(1) In rule 83, references to an enlistment paper used to enlist a person in accordance with regulations made under section 328 include—

(a) an attestation paper within the meaning of AA 1955 or AFA 1955; and

(b) a copy of Royal Navy Form S3049 (Notice Form for Entry/Re-Entry into Naval Service) signed by a person on being entered for service in the Royal Navy.

(2) In relation to a document purporting to be a copy of Royal Navy Form S3049, rule 83(1)(a) has effect as if for the word “enlisted” there were substituted “ entered for service ”.

(3) In rule 83(1)(b) the reference to a recruiting officer includes a recruiting officer within the meaning of Part 1 of AA 1955 or AFA 1955.

Documents signed by or on behalf of a person's commanding officer

12

In relation to a record or certificate purporting to have been signed before commencement, references in rules 85 and 87 to a person's commanding officer are to be read as references to his commanding officer within the meaning of Part 2 of the Armed Forces Act 2001 .

Special measures

13

(1) In Chapter 6 of Part 12, “sexual offence” includes an SDA civil offence as respects which the corresponding civil offence is—

(a) an offence under Part 1 of the Sexual Offences Act 2003;

(b) a relevant superseded offence, within the meaning of section 62 of the 1999 Act;

(c) an offence of attempting or conspiring to commit, or inciting the commission of, an offence within paragraph (a) or (b) above; or

(d) an offence under Part 2 of the Serious Crime Act 2007 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.

(2) In this paragraph—

“SDA civil offence” means an offence under section 70 of AA 1955 or AFA 1955 or section 42 of NDA 1957;

“the corresponding civil offence”, in relation to an SDA civil offence, means—the act or omission constituting the SDA civil offence; orif that act or omission is not punishable by the law of England and Wales, the equivalent act done or omission made in England or Wales.

PART 4 — SENTENCING

SDA offences

14

In rules 114(2)(d) and 115, references to service offences include SDA offences.

Activation of suspended sentence of imprisonment

15

(1) In these Rules, “activation order” includes an order made by the court determining the suspension of an SDA suspended sentence of imprisonment and committing the offender to imprisonment.

(2) In this paragraph, “SDA suspended sentence of imprisonment” means a sentence of imprisonment—

(a) passed by—

(i) a court-martial;

(ii) the Courts-Martial Appeal Court on an appeal brought from a court-martial; or

(iii) the House of Lords or the Supreme Court on an appeal brought from a decision of the Courts-Martial Appeal Court; and

(b) suspended under section 120 of AA 1955 or AFA 1955 or section 90 of NDA 1957.

SDA conditional discharge orders

16

(1) Where—

(a) an SDA conditional discharge order has been made in respect of an offender, and

(b) he is charged with an offence committed during the period of conditional discharge,

the advance information in relation to him must include a notice that, if he were convicted of the offence, the court would have power to deal with him for the offence for which he was conditionally discharged.

(2) In rule 114(5) the reference to power to deal with the offender under section 186(2) includes power to deal with him for an offence as respects which an SDA conditional discharge order was made.

(3) In this paragraph, “SDA conditional discharge order” means an order for a person's conditional discharge under paragraph 3(1) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Community supervision orders

17

(1) Where—

(a) a community supervision order has been made in respect of an offender, and

(b) he is charged with an offence committed during the period specified in the order,

the advance information in relation to him must include a notice that, if he were convicted of the offence, the court would have power to deal with him for the offence for which the order was made.

(2) In rule 114(5) the reference to power to deal with the offender under paragraph 25 of Schedule 10 to the Sentencing Code includes power to deal with him for an offence as respects which a community supervision order was made.

(3) In this paragraph, “community supervision order” means an order under paragraph 4(1) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Variation proceedings

18

(1) In rule 118(1), the reference to a sentence imposed by the court includes a sentence imposed by a court-martial.

(2) In rule 119(2), the reference to proceedings in which a sentence was imposed includes proceedings of a court-martial in which a sentence was imposed.

(3) In relation to variation proceedings held by virtue of this paragraph—

(a) rule 29 applies if, at the time when the sentence was imposed, the lay members of the court-martial were more than four in number;

(b) the reference in rule 32(3) to a member of the court for the proceedings in which the sentence that falls to be varied was imposed is to be read as a reference to a member of the court-martial;

(c) a person is not ineligible for membership of the court for the variation proceedings by virtue of having been a member of the court-martial;

(d) rule 32(6) is subject to paragraph (c) above;

(e) rule 33 applies to the proceedings if any of the lay members of the court-martial was not subject to military or air-force law or to NDA 1957;

(f) the reference in rule 118(4) to the court is to be read as a reference to the court-martial; and

(g) references in rule 120 to the original lay members are to be read as references to the lay members of the court-martial.

(4) In this paragraph, references to the lay members of the court-martial are to the members of that court other than the judge advocate.

Power to order offender's release from custody

19

In rule 124—

(a) references to the court include a court-martial;

(b) the reference to a custodial sentence includes—

(i) a sentence of imprisonment passed by a court-martial;

(ii) a sentence of custody for life under section 71A(1A) or (1B) of AA 1955 or AFA 1955 or section 43A(1A) or (1B) of NDA 1957;

(iii) a sentence of detention during Her Majesty's pleasure under section 71A(3) of AA 1955 or AFA 1955 or section 43A(3) of NDA 1957;

(iv) a sentence of detention under section 71A(4) of AA 1955 or AFA 1955 or section 43A(4) of NDA 1957 (detention for serious offence committed by young person);

(v) a custodial order under section 71AA of, or paragraph 10 of Schedule 5A to, AA 1955 or AFA 1955, or section 43AA of, or paragraph 10 of Schedule 4A to, NDA 1957; and

(c) the reference to a sentence of service detention includes a sentence of detention under section 71(1)(e) of AA 1955 or AFA 1955 or section 43(1)(e) of NDA 1957.

PART 5 — APPELLATE PROCEEDINGS

Appeal from a Standing Civilian Court

20

In these Rules—

“appellate proceedings” includes proceedings of the court (other than sentencing proceedings) on appeal from a Standing Civilian Court;

“sentencing proceedings” includes proceedings for the sentencing of a person convicted by a Standing Civilian Court who appeals against sentence.

PART 6 — ACTIVATION PROCEEDINGS

Activation proceedings in respect of a suspended sentence of detention under NDA 1957

21

(1) This paragraph applies where the court administration officer is notified—

(a) that a sentence of detention passed on an offender by a court-martial under NDA 1957 is suspended under section 90 of that Act;

(b) that—

(i) the offender's commanding officer has recorded a finding under the 2006 Act that a charge against the offender in respect of an SDA offence committed since the sentence was suspended, or a service offence, is proved; or

(ii) the offender has been convicted (before or after commencement) of an offence in the British Islands committed since the sentence was suspended; and

(2) Where this paragraph applies, in Part 17 and this paragraph—

“the relevant facts” means the facts mentioned in sub-paragraph (1);

“the original sentence” means the sentence mentioned in sub-paragraph (1)(a);

“the relevant period” means the period since the original sentence was suspended (or last suspended);

“the new offence” means the offence mentioned in sub-paragraph (1)(b)(i) or (ii), as the case may be;

“summons” and “warrant” mean a summons or warrant (as the case may be) issued on the basis of the facts mentioned in sub-paragraph (1);

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

(3) Where this paragraph applies—

(a) references in Part 17 to the proceedings in which the original sentence was passed are to be read as references to the proceedings under NDA 1957 in which that sentence was passed; and

(b) rule 134(2)(c) includes the record of any proceedings in which a court or an officer made, or gave reasons for not making, an order under section 91(1) or 91B(1) of NDA 1957 in respect of the original sentence.

PART 7 — ANCILLARY PROCEEDINGS

Review of stoppages or SDA compensation order

22

(1) Rule 145 applies in relation to an application to the court under section 177 in respect of—

(a) an award of stoppages; or

(b) an SDA compensation order.

(2) In rule 145 as applied by this paragraph, references to the order are to be read as references to the award of stoppages or the SDA compensation order, as the case may be.

(3) In relation to an award of stoppages, rule 145 has effect as if the following were omitted—

(a) paragraph (1)(b);

(b) paragraph (1)(e), and the word “and” preceding it;

(d) in paragraph (5), the words “and the person in whose favour the order was made”; and

(e) in paragraph (6), the words “, and the person in whose favour the order was made,”.

Application for time to pay financial penalty

23

(1) Rule 146 applies in relation to an application to the court under section 251(3) in respect of—

(a) a fine awarded under any of the SDAs;

(b) an award of stoppages; or

(2) References in rule 146 to an application made in respect of a service compensation order include an application made in respect of an SDA compensation order.

Variation or revocation of order for recognizance

24

(1) Rule 150 applies in relation to an application to the court under section 235(4) in respect of an order under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

(2) In rule 150 as applied by this paragraph, “the order” means the order under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

PART 8 — CONSEQUENCES OF ELECTION FOR COURT-MARTIAL TRIAL

Interpretation

25

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of Part 20 to SDA elections

26

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Charge referred to higher authority following election for court-martial trial on another charge

27

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of the Director

28

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sentence for an SDA election offence relevant by virtue of section 165(1)(a) or (b)

29

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sentence where charge referred following SDA election on another charge

30

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Multiple relevant offences where election under AA 1955

31

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sentence for multiple relevant offences

32

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Activation of suspended SDA sentence of detention

33

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signed

Kevan Jones — Parliamentary Under Secretary of State — 2009-07-21

Explanatory note

(This note is not part of the Rules)

Footnotes

[^f00001]: 1968 c. 20. Section 19(5) of the Court Martial Appeals Act 1968 is inserted by paragraph 20 of Schedule 8 to the Armed Forces Act 2006 (c. 52).

[^f00002]: 2003 c. 44. By virtue of section 113 of, and paragraph 5 of Schedule 6 to, the Criminal Justice Act 2003 (“the 2003 Act”), section 111 has effect as if, in its subsection (7), the definition of “rules of court” included rules regulating the practice and procedure of service courts. By virtue of section 135 of, and paragraph 2(6) of Schedule 7 to, the 2003 Act, section 132 is modified so that, in its subsection (10), the definition of “rules of court” includes rules regulating the practice and procedure of service courts. By virtue of paragraph 6 of Schedule 6 and paragraph 8 of Schedule 7 (as amended by paragraph 234(4) and paragraph 235(6) of Schedule 16 to the Armed Forces Act 2006), “service court” includes the Court Martial.

[^f00003]: 2006 c. 52.

[^f00004]: 1967 c. 80.

[^f00005]: 1999 c. 23.

[^f00006]: S.I. 2009/988.

[^f00007]: 2006 c. 46.

[^f00008]: 1978 c. 19.

[^f00009]: 1974 c. 23. Schedule 1 to the Juries Act 1974 is substituted by section 321 of, and paragraphs 1 and 15 of Schedule 33 to, the Criminal Justice Act 2003.

[^f00010]: 1990 c. 41. Subsection (6) of section 71 of the Courts and Legal Services Act 1990 was substituted by the Access to Justice Act 1999 (c. 22), section 43, Schedule 6, paragraphs 4 and 9. Subsections (7) and (8) of section 71 of the 1990 Act were repealed by section 106, Schedule 15, Part 2 of the 1999 Act. Prospective amendments to section 71 of the 1990 Act are made to subsections (1) and (3) by the Constitutional Reform Act 2005 (c. 4), section 59(5), Schedule 11, Part 2, paragraph 4(1), (3). Prospective amendments are made to subsections (4) and (6) and a new subsection (6A) is inserted into section 71 of the 1990 Act by the Legal Services Act 2007 (c. 29), section 208(1), Schedule 21, paragraphs 83 and 94(a), (b) and (c).

[^f00011]: 1879 c. 11.

[^f00012]: 2003 c. 42.

[^f00013]: 2007 c. 27.

[^f00014]: 1983 c. 20.

[^f00015]: 2004 c. 28; section 6 of the Domestic Violence, Crime and Victims Act 2004 is applied to the Court Martial by section 8 of that Act (as amended by paragraph 238 of Schedule 16 to the Armed Forces Act 2006).

[^f00016]: 1974 c. 53. Sections 2 and 6 of the Rehabilitation of Offenders Act 1974 were amended, and the Schedule inserted, by the Armed Forces Act 1996 (c. 46), section 13 and Schedule 4. Sections 1, 2 and 5, and the Schedule, were further amended by paragraphs 63 to 66 of Schedule 16 to the 2006 Act.

[^f00017]: 2000 c. 6.

[^f00018]: Section 13 of the 1968 Act is substituted by paragraph 11 of Schedule 8 to the 2006 Act.

[^f00019]: Sections 14 and 14A of the 1968 Act are amended by paragraphs 12 and 13 (respectively) of Schedule 8 to the 2006 Act.

[^f00020]: Section 16A of the 1968 Act is substituted by paragraph 16 of Schedule 8 to the 2006 Act.

[^f00021]: 2005 c. 4.

[^f00022]: 1955 c. 18.

[^f00023]: 1955 c. 19.

[^f00024]: S.I. 2007/3442.

[^f00025]: 1957 c. 53.

[^f00026]: S.I. 2007/3444.

[^f00027]: S.I. 2007/3443.

[^f00028]: 1991 c. 62.

[^f00029]: 1996 c. 14.

[^f00030]: 2001 c. 19.

[^f00031]: Sections 91 to 91D of NDA 1957 were substituted for section 91 of that Act by article 31 of the Armed Forces (Alignment of Service Discipline Acts) Order 2008, S.I. 2008/1694.

1

These Rules may be cited as the Armed Forces (Court Martial) Rules 2009 and shall come into force on 31st October 2009.

2

(1) Unless otherwise stated, any reference in these Rules to proceedings includes—

(a) preliminary proceedings,

(b) trial proceedings,

(d) variation proceedings,

(e) appellate proceedings,

(f) activation proceedings, ...

(g) ancillary proceedings and

(h) review of sentence proceedings,

but does not include the exercise of any power of the court otherwise than at a hearing.

(2) In these Rules—

“activation order” means—an order under paragraph 13(1)(a) or (b) of Schedule 16 to the Sentencing Code (activation of suspended sentence of imprisonment);an order under section 191(3) (activation of suspended sentence of service detention); oran order under section 214(3) (reactivation of detention and training order);

“activation proceedings” means proceedings for the making of an activation order, but does not include sentencing proceedings in which the court has power to make such an order;

“ancillary proceedings” means—a hearing under rule 127 of an application under section 285(4) for leave to appeal out of time from the Service Civilian Court; andproceedings under any provision of Part 18;

“appellate proceedings” means proceedings of the court (other than sentencing proceedings) on appeal from the Service Civilian Court;

“community order proceedings” means any proceedings under Chapter 1 of Part 18;

“domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;

“preliminary proceedings” means any proceedings of the court held for the purpose of arraigning a defendant on a charge or giving directions, orders or rulings for the purpose of trial proceedings;

“related proceedings”, in relation to preliminary proceedings, means—trial proceedings in respect of any charge to which the preliminary proceedings relate;any further preliminary proceedings in relation to such trial proceedings; andany sentencing proceedings in respect of any offence found proved in such trial proceedings, or as respects which the offender pleads guilty in the preliminary proceedings or related proceedings;

“review of sentence proceedings” means proceedings before the court under section 304D (review of sentence following offer of assistance) or section 304E (review of sentence following failure to assist);

“sentencing proceedings” means proceedings for the sentencing of—a person convicted by the court on a plea of guilty or in trial or appellate proceedings, ora person convicted by the Service Civilian Court who appeals against sentence,and does not include variation proceedings;

“trial proceedings” means proceedings for the trial of a charge by the court (including proceedings authorised by an order of the Appeal Court under section 19 of the 1968 Act), and does not include sentencing proceedings;

“variation proceedings” means proceedings under Part 15.

(3) References in these Rules to a party to any proceedings are to—

(a) a person to whom the proceedings relate;

(b) the Director; and

(c) where the proceedings are for the hearing of an application (and the applicant is not a person to whom the proceedings relate), the applicant.

(4) References in these Rules to a person to whom proceedings relate are to—

(a) in the case of preliminary or trial proceedings, a defendant;

(b) in the case of sentencing proceedings, an offender who falls to be sentenced;

(c) in the case of variation proceedings, an offender in respect of whom a sentence which falls to be varied has been passed;

(d) in the case of appellate proceedings, an appellant;

(e) in the case of activation proceedings, the offender in respect of whom the court has power to make an activation order;

(f) in the case of community order proceedings, the offender in respect of whom the overseas community order was made;

(g) in the case of a hearing of an application under section 232(1) for the variation or revocation of a service restraining order, the person in respect of whom the service restraining order was made;

(h) in the case of a hearing of any other application (other than community order proceedings), the applicant;

(i) in the case of proceedings under section 229 (service restraining orders) in respect of a case remitted to the court by the Appeal Court under section 230(3), the person whose appeal was allowed; ...

(j) in the case of a hearing under rule 151 (certification of contempt of court), the person whose offence the court is to consider certifying ; and

(k) in the case of review of sentence proceedings, the person on whom the court has passed a sentence.

(5) In these Rules—

“the Director” means the Director of Service Prosecutions;

“defendant” means a person against whom a charge allocated for Court Martial trial has been brought.

3

(1) Any reference in these Rules to a numbered section is to that section of the 2006 Act unless otherwise stated.

(2) In these Rules—

“the 2006 Act” means the Armed Forces Act 2006;

“the 1967 Act” means the Criminal Justice Act 1967 ;

“the 1968 Act” means the Court Martial Appeals Act 1968;

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

“the 2003 Act” means the Criminal Justice Act 2003;

“the CPIA Order” means the Criminal Procedure and Investigations Act 1996 (Application to the Armed Forces) Order 2009 ;

“advance information” has the meaning given by rule 43(2);

“allocated for Court Martial trial” means regarded for the purposes of Part 5 of the 2006 Act as allocated for Court Martial trial;

“the Appeal Court” means the Court Martial Appeal Court;

“bad character” has the meaning given by section 98 of the 2003 Act;

“civilian police force” means a UK police force or a British overseas territory police force;

“the complainant”, in relation to any offence (or alleged offence), means a person against or in relation to whom the offence was (or is alleged to have been) committed;

“the court” means the Court Martial;

“DX” means document exchange;

“detention and training order” means an order under section 211;

“the judge advocate”, in relation to any proceedings, means the judge advocate specified for the proceedings under section 155(5);

“the lay members” has the same meaning as in section 155;

“legal representative” means a person appointed under rule 39;

“live link”, except in Part 15, has the meaning given by rule 18(3)(a);

“the original sentence”, in relation to activation proceedings, has the same meaning as in Part 17;

“pre-sentence report” has the meaning given by section 257;

“the president of the board” means the lay member (if any) who by virtue of rule 34 is the president of the board;

“proceedings with lay members” means any proceedings other than those listed in rule 27;

“qualified to be the president of the board” has the meaning given by rule 34(3);

“suspended sentence order” means an order under section 264 or 277 of the Sentencing Code or section 189(1) of the 2003 Act (suspended sentence of imprisonment) made by a relevant service court, as defined by section 207 of the 2006 Act;

“unit” means—a naval ship or establishment;any body of members of Her Majesty's forces formed under the command of a person appointed to be the commanding officer of the body; oran air force station.

(3) Any reference in these Rules to Schedule 10 to the Sentencing Code is to that Schedule as modified by section 181 of the 2006 Act and Schedule 6A to that Act.

4

(1) References in this Part to service under these Rules include service under any enactment applied by these Rules.

(2) References in this Part to a requirement that a document be served on a person include any requirement that the document be supplied to the person, however expressed.

(3) References in this Part to a person's agreement to the service of a document in a particular way include his agreement that any document of a description specified by him may be served in that way.

5

(1) Where under these Rules any document is to be served on a person to whom any proceedings relate, it may be served—

(a) on him personally;

(b) if he is subject to service law, by post in a letter addressed to him at his unit;

(i) by leaving it at his usual or last known place of abode; or

(ii) by post in a letter addressed to his usual or last known place of abode;

(d) by post in a letter addressed to his legal representative's place of business; or

(e) by DX, fax, electronic mail or other electronic means to his legal representative, where his legal representative—

(i) has given a DX box number, fax number or electronic mail or other electronic means address; and

(ii) has not refused to accept service by that means.

(2) In this rule references to the person's legal representative are to any person of whose name and address the court administration officer has been notified under rule 39(4).

6

Where under these Rules any document is to be served on the court administration officer, it may be served—

(a) by post, DX, fax, electronic mail or other electronic means to any office of the Military Court Service; or

(b) on a member of that Service personally, with his agreement.

7

Where under these Rules any document is to be served on the Director, it may be served—

(a) by post, DX, fax, electronic mail or other electronic means to—

(i) the principal office of the Service Prosecuting Authority; or

(ii) with the agreement of a prosecuting officer, that Authority's main office in Germany; or

(b) on a prosecuting officer personally, with his agreement.

8

Where under these Rules any document is to be served on an individual other than a person to whom proceedings relate, the court administration officer or the Director, it may be served—

(a) on the individual personally;

(b) if he is subject to service law, by post in a letter addressed to him at his unit;

(i) by leaving it at his usual or last known place of abode; or

(ii) by post in a letter addressed to his usual or last known place of abode.

9

Where under these Rules any document is to be served on a corporation within the meaning of the Companies Act 2006 , it may be served—

(a) by post to—

(i) the corporation's principal office in the United Kingdom;

(ii) if the corporation has no readily identifiable principal office in the United Kingdom, any place in the United Kingdom where it carries on its activities or business; or

(iii) if the corporation has no principal office in the United Kingdom and does not carry on its activities or business in the United Kingdom, its principal office; or

(b) by DX, fax, electronic mail or other electronic means, where the corporation—

(i) has given a DX box number, fax number or electronic mail or other electronic means address; and

(ii) has not refused to accept service by that means.

10

(1) A judge advocate may direct that a document may be served by a method other than those mentioned in rules 5 to 9.

(2) A direction under this rule—

(a) must specify—

(i) the method to be used; and

(ii) the date by which the document must be served; and

(b) may specify the time on that date by which the document must be served.

(3) The court may treat a document as served if the addressee responds to it, even if it was not served in accordance with these Rules.

11

Where a document to be served on a person is sent or delivered to his commanding officer, his commanding officer must arrange for the document to be served on him personally as soon as is reasonably practicable.

12

Where a document is served by fax, electronic mail or other electronic means, the person serving it need not provide a paper copy as well.

13

Unless the contrary is shown, a document served on a person (otherwise than personally) shall be assumed to have been served—

(a) in the case of a document sent by post from the United Kingdom to an address within the United Kingdom, on the fifth day after the day on which it was despatched;

(b) in the case of a document sent by post—

(i) from the United Kingdom or Germany to an address within Germany, or

(ii) from Germany to an address within the United Kingdom,

on the tenth day after the day on which it was despatched;

(d) in the case of a document served by DX, on the fifth day after the day on which it was left at the addressee's DX box number or despatched;

(e) in the case of a document served by fax, electronic mail or other electronic means, on the day after it was transmitted; and

(f) in any case, on the day on which the addressee responds to it if that is earlier.

14

(1) Where—

(a) under any of rules 5 to 9 or a direction under rule 10, a document may be served by a particular method, and

(b) a certificate is produced which—

(i) states that the document was so served, and

(ii) is signed by a person who purports to have so served the document,

the document shall be assumed to have been so served, unless the contrary is shown.

(2) Where a certificate is produced which—

(a) states that a document was despatched, left at a DX box number or transmitted on a particular day, and

(b) is signed by a person who purports to have despatched, left or transmitted the document,

for the purposes of rule 13 the document shall be assumed to have been despatched, left or transmitted on that day, unless the contrary is shown.

(3) This rule is subject to any provision requiring proof on oath.

15

(1) The court administration officer must exercise his functions (other than that of specifying the lay members for any proceedings) subject to any direction given by a judge advocate.

(2) The court administration officer may delegate any of his functions to a member of the Military Court Service.

16

(1) Proceedings shall commence at such time and place as may be appointed by the court administration officer; but this is subject to paragraph (2).

(2) Where an offender has been convicted in trial or appellate proceedings, the sentencing proceedings in respect of him shall commence immediately after the conclusion of the trial or appellate proceedings, unless the judge advocate for those proceedings appoints some later time.

(3) After the commencement of any proceedings, the court shall sit at such times and for such periods each day as the judge advocate may direct.

17

(1) The court administration officer must serve notice of any time and place appointed by him for the commencement or resumption of any proceedings on—

(a) each person to whom the proceedings relate;

(b) the legal representative (if any) of each such person;

(d) the Director;

(e) where the proceedings are for the hearing of an application, the applicant; and

(f) any such other person as the Judge Advocate General may direct.

(2) At the same time as serving notice under paragraph (1) of the time and place appointed for the commencement of any proceedings with lay members, or as soon as is reasonably practicable after doing so, the court administration officer must serve on the persons mentioned in that paragraph a notice of the name and relevant particulars of—

(a) each of the lay members; and

(b) any person specified as a waiting member under rule 36.

(3) In paragraph (2), “relevant particulars” means—

(a) in relation to a person subject to service law, his rank or rate and his unit;

(b) in relation to any other person, any position held by him in the service of the Crown and any unit to which he is attached.

18

(1) Any person may (and, if in service custody, must) attend any proceedings by live link, if a judge advocate so directs.

(2) A person who attends any proceedings by live link, and could give oral evidence in the proceedings if he were in the place where the proceedings are being held, may give evidence by live link.

(3) In these Rules (except Part 15)—

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

(b) references to bringing a person before the court include bringing him to a place from which he can attend proceedings by live link.

(4) A direction under this rule may be given by—

(a) the judge advocate for the proceedings; or

(b) the judge advocate for any preliminary proceedings as respects which the proceedings are related proceedings.

(5) Rule 49(3) (effect of a direction given in preliminary proceedings) applies to a direction under this rule given in preliminary proceedings.

(6) Where a direction is given under this rule in relation to a witness, the witness may not give evidence otherwise than by live link without the leave of the judge advocate.

(7) A judge advocate may give a direction under this rule, or give leave for the purposes of paragraph (6)—

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

(b) of his own motion.

19

(1) Proceedings may be held in the absence of any person to whom they relate, if the judge advocate so directs.

(2) This rule does not permit a defendant to be arraigned in his absence.

(3) The court may not impose a driving disqualification order in the absence of an offender, unless the court is satisfied that the offender was informed prior to the hearing that the court was considering disqualification.

20

(1) While the court is deliberating on—

(a) finding, or

(b) any other matter as respects which the judge advocate directs that this paragraph is to apply,

no other person may be present.

(2) While the court is deliberating on—

(a) sentence,

(aa) review of sentence under section 304D or 304E,

(b) an issue of fact being tried under rule 112,

(d) any other matter as respects which the judge advocate directs that this paragraph is to apply,

no other person may be present except a person in attendance for instruction.

21

(1) This rule applies where under these Rules an oath is required to be administered to a person.

(2) Sections 1 and 3 to 6 of the Oaths Act 1978 shall apply, as modified by paragraph (3), as they would apply if the person were required to take an oath in England and Wales.

(3) Where section 1 or 6 of that Act applies by virtue of this rule, the reference in that section to the words of the oath prescribed by law is to be read as a reference to the words prescribed by Schedule 1 for a person of the class to which the person belongs.

22

(1) Where a person to whom any proceedings relate is due to attend a hearing, the court administration officer, unless satisfied that the person does not need interpretation, shall appoint an interpreter to act at the hearing.

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

(3) 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.

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

(5) 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 person to whom any proceedings relate, and who needs interpretation, unless―

(a) translation of that document, or part, is not needed to explain the issues arising in the proceedings in relation to the person (including, in the case of trial proceedings, the case against the defendant); or

(b) the person agrees to do without, and the judge advocate is satisfied—

(i) that the agreement is clear and voluntary; and

(ii) that the person has had legal advice or otherwise understands the consequences.

(6) On application by a person to whom any proceedings relate, the judge advocate shall give any direction which he thinks appropriate, including a direction for interpretation by a different interpreter, where―

(a) no interpreter is appointed, or no interpretation provided;

(b) no translation is ordered, or provided, in response to a previous application by the person; or

(7) In relation to a person who has a hearing or speech impediment, references in these Rules to an interpreter include a person appointed—

(a) to communicate to the person anything said at the hearing, and explain it so far as necessary to enable the person to understand it, or

(b) to communicate any answers given by the person, and any other matters that the person seeks to convey, and explain them so far as necessary to enable the court and others present at the hearing to understand them,

and references to interpretation shall be construed accordingly.

(8) In its application by virtue of paragraph (7), nothing in this rule is limited by anything in Chapter 6 of Part 12 (special measures directions).

(9) In this rule references to acting at a hearing include assisting the person to communicate with the person’s legal representative during the hearing; and in relation to such assistance paragraph (7)(b) has effect as if the reference to the court and others present at the hearing were to the legal representative.

23

(1) A record must be made of any proceedings.

(2) The record of proceedings must include—

(a) a record of any plea offered, and whether any plea of guilty was accepted by the judge advocate;

(b) a record of any finding;

(d) a record of any order made, and any direction or ruling given, by the judge advocate;

(e) a sound recording of the proceedings, and any transcript of it (signed by the transcriber);

(f) a record of the identity of any interpreter;

(g) a record of any decision on an application under rule 22(5);

(h) a record of any agreement under rule 22(5)(b) to do without a written translation of a document or part of a document; ...

(i) a record of any direction given under rule 22(6) ; and

(j) a record of any decision on an application under rule 22A(6).

(3) The court administration officer shall send a copy of the record of any preliminary proceedings to—

(a) the Judge Advocate General;

(b) the Director; and

(4) Where a direction under rule 47 (preliminary proceedings in chambers) was given in relation to the proceedings, paragraph (3) shall have effect as if sub-paragraph (c) were omitted; and, where such a direction was given in relation to part of the proceedings, paragraph (3)(c) shall have effect in relation only to the record of the remainder.

(5) The record of proceedings shall be kept in the custody of the Judge Advocate General, together with any exhibits retained under rule 24 and any file of correspondence or other papers maintained by the court administration officer in connection with the proceedings, for at least six years from—

(a) in the case of trial or appellate proceedings in which a defendant is convicted, the conclusion of the sentencing proceedings in relation to him;

(b) in the case of preliminary proceedings where related trial or appellate proceedings take place but no defendant or appellant is convicted, the conclusion of the trial or appellate proceedings;

(ba) in the case of review of sentence proceedings, the conclusion of the review of sentence proceedings;

(6) A copy of the record of proceedings, or any part of it, shall be supplied on request—

(a) to any party to the proceedings, without charge, and

(b) to any other person, on payment of such charge as may be fixed by the Judge Advocate General,

but this is subject to paragraphs (7) and (8).

(7) Paragraph (6) does not require the supply of—

(a) a copy of the record of any proceedings held in camera, or in relation to which a direction under rule 47 (preliminary proceedings in chambers) was given;

(b) a copy of any part of a record of proceedings which relates to a part of the proceedings which was held in camera, or in relation to which such a direction was given.

(8) If, following a request for the supply of a copy of the record of proceedings or any part of it, the Secretary of State certifies that it is requisite for reasons of security that the record or part requested (or any part of it) should not be disclosed, paragraph (6) does not require the supply of the record or part requested (or the part of it to which the certificate relates).

24

(1) Any exhibit admitted in evidence must be marked sequentially with either a number or a letter.

(2) Each exhibit, or a label attached to it, must be signed by or on behalf of the judge advocate.

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