Legalize / United Kingdom / Statutory-Instrument

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

PDF Download

articles Not indexed

Reform history JSON API

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 Subsections (7) and (8) of section 71 of the 1990 Act were repealed by section 106, Schedule 15, Part 2 of the 1999 Act.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).

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).

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.

2000 c. 6.

Section 13 of the 1968 Act is substituted by paragraph 11 of Schedule 8 to the 2006 Act.

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

Section 16A of the 1968 Act is substituted by paragraph 16 of Schedule 8 to the 2006 Act.

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.

(3) Each exhibit must be retained with the record of proceedings, unless the judge advocate otherwise directs.

25

(1) The judge advocate must terminate any proceedings to which rule 34 (president of the board) applies if—

(a) the president of the board dies or is otherwise unable to continue to attend the proceedings; and

(b) there is no other lay member of the court who is qualified to be the president of the board.

(2) The judge advocate must terminate any proceedings with lay members if—

(a) a lay member dies or is otherwise unable to continue to attend the proceedings, or

(b) the number of lay members discharged under rule 35(4) (objections to lay members) exceeds the number of waiting members,

and the number of lay members is in consequence reduced below the minimum number required for the Court Martial to remain validly constituted.

(3) The judge advocate may terminate any proceedings if he considers it in the interests of justice to do so.

(4) The Judge Advocate General shall terminate proceedings if the judge advocate dies or is otherwise unable to continue to attend the proceedings.

(5) Where proceedings with lay members are terminated under this rule, the lay members shall be discharged.

(6) The termination of trial or appellate proceedings under this rule shall not bar further trial or appellate proceedings in relation to the same charge or charges.

(7) The termination of sentencing proceedings under this rule or rule 59(4) (change of plea) shall not bar further sentencing proceedings in relation to the same offence or offences.

(8) The termination of activation proceedings under this rule shall not bar further activation proceedings held by virtue of the same conviction.

26

Subject to any other enactment (including any other provision of these Rules), the judge advocate shall ensure that proceedings are conducted—

(a) in such a way as appears to him most closely to resemble the way in which comparable proceedings of the Crown Court would be conducted in comparable circumstances; and

(b) if he is unable to determine how comparable proceedings of the Crown Court would be conducted in comparable circumstances, in such a way as appears to him to be in the interests of justice.

27

(1) For proceedings to which this rule applies, there shall be no lay members.

(2) This rule applies to preliminary proceedings.

(3) This rule applies to sentencing proceedings where every offender who falls to be sentenced is either—

(a) a civilian offender for the purposes of Part 1 of Schedule 3 to the 2006 Act; or

(b) an offender to whom Part 2 of that Schedule (ex-servicemen etc) applies, and who was convicted of every offence for which he falls to be sentenced either—

(i) in trial proceedings for which no lay member was subject to service law; or

(ii) on a guilty plea, where the court administration officer had previously notified him in writing that, if trial proceedings were required, none of the lay members would be subject to service law.

(4) This rule applies to variation proceedings if—

(a) it applied to the proceedings in which the sentence that falls to be varied was imposed; or

(b) a direction is given under rule 120.

(5) This rule applies to activation proceedings if—

(a) the original sentence was imposed by the court, and this rule applied to the proceedings in which it was imposed; or

(b) the original sentence was imposed by the Service Civilian Court.

(6) This rule applies to ancillary proceedings.

(7) This rule applies to review of sentence proceedings if it applied to the proceedings in which the sentence that falls to be reviewed was imposed.

28

Any power of the court may be exercised by a judge advocate, except—

(a) the power to try a defendant or appellant; and

(b) the power—

(i) to sentence an offender,

(ii) to vary a sentence, ...

(iii) to make an activation order, or

(iv) to review the sentence of an offender under section 304D or 304E,

otherwise than in proceedings to which rule 27 applies.

29

(1) For proceedings to which this rule applies, the number of lay members shall be six.

(2) This rule applies to trial proceedings if—

(a) any defendant is charged with an offence listed in Schedule 2 to the 2006 Act;

(b) any defendant is aged 18 or over at the commencement of the proceedings and is charged with an offence for which he could, if convicted, be sentenced to more than two years' imprisonment; or

(c) any defendant is aged under 18 at the commencement of the proceedings and is charged with an offence for which he could, if convicted while under the age of 18, be sentenced to more than two years' detention under section 209.

(3) Subject to rule 29A, this rule applies to sentencing proceedings if any offender falls to be sentenced for—

(a) an offence listed in Schedule 2 to the 2006 Act; or

(b) an offence for which he could be sentenced to more than two years' imprisonment or more than two years' detention under section 209.

(4) Subject to rule 29A, this rule applies to variation proceedings if it applied to the proceedings in which the sentence that falls to be varied was imposed.

(5) Subject to rule 29A, this rule applies to review of sentence proceedings if it applied to the proceedings in which the sentence that falls to be reviewed was imposed.

30

(1) A judge advocate may only give a direction under section 155(2A) if the judge advocate considers it necessary to do so, having regard to the expected length and location of the proceedings.

(2) A direction may not be given under section 155(2A) after the commencement of the proceedings unless—

(a) a direction under section 155(2A) was in effect when the proceedings commenced;

(b) one or more lay members has been discharged under rule 35(4) (objections); and

(3) A judge advocate may rescind a direction under section 155(2A) at any time before the commencement of the proceedings to which it relates.

31

(1) For any proceedings with lay members where every person to whom the proceedings relate is of or below the rank or rate of warrant officer, the number prescribed for the purposes of section 155(3) (that is to say, the number of lay members who may be warrant officers or OR-7 ranks rather than officers) is —

(a) one, if there are three or four lay members; or

(b) two, if there are five or six lay members.

(1A) The number prescribed by paragraph (1) may consist of, or include no more than, one OR-7 rank if every person to whom the proceedings relate is of or below that rank or rate.

(2) For any proceedings with lay members where any person to whom the proceedings relate is an officer subject to service law, every lay member must be an officer qualified for membership under section 156 and not ineligible by virtue of section 157 or rule 32; and section 155(3) shall not apply in relation to any such proceedings.

32

(1) A person is ineligible for membership of the court for any trial proceedings if, at any time since the date of the commission of any offence charged, he and any defendant were serving in the same unit.

(2) A person is ineligible for membership of the court for any sentencing proceedings if, at any time since the date of the commission of any offence for which an offender falls to be sentenced, he and the offender were serving in the same unit.

(3) A person is ineligible for membership of the court for any variation proceedings if he was not a member of the court for the proceedings in which the sentence that falls to be varied was imposed.

(4) A person is ineligible for membership of the court for any appellate proceedings if at any time since the date of the commission of any offence to which the proceedings relate he and any appellant were serving in the same unit.

(4A) A person is ineligible for membership of the court for any review of sentence proceedings if, at any time since the date of the commission of any offence for which the sentence that falls to be reviewed was imposed, that person and the offender were serving in the same unit.

(5) A person is ineligible for membership of the court for any activation proceedings if at any time since the date of the commission of the offence for which the original sentence was passed he and the offender were serving in the same unit.

(6) A person is ineligible for membership of the court for any proceedings if he was a member of the court for any previous proceedings to which any person to whom the proceedings relate was a party; but this is subject to paragraphs (7) to (9).

(7) A person is not ineligible for membership of the court for sentencing proceedings by virtue of having been a member of the court for any trial or appellate proceedings in which any offender was convicted of any offence for which he falls to be sentenced.

(8) A person is not ineligible for membership of the court for variation proceedings by virtue of having been a member of the court for—

(a) any trial or appellate proceedings in which the offender was convicted of any offence for which the sentence that falls to be varied was imposed; or

(b) the proceedings in which that sentence was imposed.

(8A) A person is not ineligible for membership of the court for review of sentence proceedings by virtue of having been a member of the court for—

(a) any trial or appellate proceedings in which the offender was convicted of any offence for which the sentence that falls to be reviewed was imposed;

(b) any proceedings in which the sentence that falls to be reviewed was imposed or varied.

(9) For the purposes of paragraph (6) a person is not to be regarded as having been a member of the court for any previous proceedings if those proceedings were terminated under rule 25(2) by virtue of sub-paragraph (b) of that paragraph (successful objections exceeding the number of waiting members).

(10) In relation to a person who at any time was not subject to service law, references in this rule 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.

(11) This rule does not apply to the judge advocate.

33

(1) For proceedings to which this rule applies, each of the lay members must be either—

(a) a person not subject to service law who is qualified for membership under paragraph (2) and not ineligible by virtue of rule 32; or

(b) an officer or warrant officer who would be qualified for membership under section 156, and not ineligible by virtue of section 157 or rule 32, if this rule did not apply;

and section 155(3) shall not apply in relation to the proceedings.

(2) For proceedings to which this rule applies, a person not subject to service law is qualified for membership of the court unless—

(a) he is aged under 18, or has reached the age of 70, at the commencement of the proceedings;

(b) he is not a United Kingdom national;

(d) he is disqualified for jury service;

(e) he is a member of the Military Court Service; or

(f) he is on the staff of the Service Prosecuting Authority.

(3) In paragraph (2), “United Kingdom national” has the same meaning as in paragraph 11 of Schedule 15 to the 2006 Act.

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

(a) a person is a mentally disordered person if he is one of those listed in Part 1 of Schedule 1 to the Juries Act 1974 ; and

(b) a person is disqualified for jury service if he is one of those listed in Part 2 of that Schedule.

(5) This rule applies to—

(a) trial proceedings, if any defendant is not subject to service law at the commencement of the proceedings;

(b) sentencing proceedings with lay members, if any offender who falls to be sentenced was not subject to service law when convicted;

(c) variation proceedings with lay members, if this rule applied to the sentencing proceedings in which the sentence that falls to be varied was imposed;

(d) appellate proceedings; ...

(e) activation proceedings with lay members, if the offender is not subject to service law at the commencement of the proceedings ; and

(f) review of sentence proceedings with lay members if this rule applied to the sentencing proceedings in which the sentence that falls to be reviewed was imposed.

(6) Where this rule applies to any proceedings and any person to whom the proceedings relate is an officer not subject to service law, paragraph (1) has effect as if the words “or warrant officer” in sub-paragraph (b) were omitted.

34

(1) For proceedings to which this rule applies, at least one lay member must be an officer who is qualified to be the president of the board.

(2) This rule applies to any proceedings with lay members, except proceedings for which (by virtue of rule 33) no lay member is subject to service law.

(3) An officer (“A”) is qualified to be the president of the board if—

(a) A is of or above the rank of lieutenant commander, major or squadron leader;

(b) A is subject to service law; and

(c) where any person to whom the proceedings relate (“B”) is subject to service law, A satisfies the requirements set out in paragraphs (4) and (4A).

(4) Where B is of rank OF-6 or above, A must be of rank OF-6 or above.

(4A) Where B is of rank OF-5 or below, A must be of superior rank to B.

(5) In paragraphs (3) and (4), “rank” means substantive rank.

(5A) In this rule—

“OF-5” means any of the following—captain, Royal Navy;colonel;group captain;

“OF-6” means any of the following—commodore;brigadier;air commodore.

(6) Where one lay member is qualified to be the president of the board, he shall be the president of the board.

(7) Where two or more lay members are so qualified, the most senior of them shall be the president of the board.

(8) Paragraph (9) applies where—

(a) the president of the board is discharged under rule 35(4) (objections);

(b) the proceedings are not terminated under rule 25(2) (lay members reduced below minimum number);

(d) no waiting member is so qualified.

(9) Where this paragraph applies—

(a) the proceedings shall be adjourned;

(b) the court administration officer shall specify as a lay member another officer who is qualified to be the president of the board;

(d) rule 35 (objections) shall apply on the resumption of the proceedings as it applies on the commencement of the proceedings.

(10) Notwithstanding anything in this rule, in any proceedings with lay members the judge advocate shall preside over the court.

35

(1) At the commencement of any proceedings to which this rule applies, the names of the lay members and waiting members shall be read out.

(2) Any party to the proceedings may object to any lay member, on any reasonable ground.

(3) The judge advocate shall rule on any objection to a lay member before the lay member is sworn.

(4) If an objection to a lay member is upheld, the judge advocate shall discharge him.

(5) This rule applies to any proceedings with lay members except—

(a) sentencing proceedings, where every offender who falls to be sentenced was convicted in trial or appellate proceedings of at least one offence for which he falls to be sentenced; ...

(b) variation proceedings ; and

36

(1) When the court administration officer specifies the lay members for any proceedings to which rule 35 applies, he shall at the same time specify a person (referred to in these Rules as a “waiting member”) to take the place of any lay member who may be discharged under rule 35(4).

(2) Where a lay member is discharged under rule 35(4), and rule 34(9) (no member qualified to be president of the board) does not apply, the waiting member shall become a lay member.

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

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

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

(6) Where—

(a) two waiting members have been specified,

(b) two lay members are discharged under rule 35(4), and

both the waiting members shall become lay members.

(7) Rule 35(2) to (4) (objections) apply in relation to a waiting member who becomes a lay member by virtue of this rule.

37

At the commencement of any proceedings to which rule 35 applies, an oath shall be administered—

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

(b) to any person in attendance for instruction.

38

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

39

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

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

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

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

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

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

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

40

(1) This rule applies where a person to whom proceedings relate (“the young person”)—

(a) is under the age of 18 years at the commencement of the proceedings; and

(b) is not subject to service law.

(2) Where a party to the proceedings or the court administration officer is required to serve any document on the young person under these Rules, he must also serve it on the young person's parent or guardian.

(3) Where the young person has not appointed a legal representative—

(a) any right conferred on a party to proceedings by these Rules may be exercised, and any duty imposed on him by these Rules (except pleading to a charge) discharged, by his parent or guardian on his behalf; and

(b) the judge advocate may give leave for his parent or guardian to represent him in any proceedings.

41

Where—

(a) a charge is allocated for Court Martial trial, and

(b) the defendant has not been arraigned before the court,

section 111 shall apply as if the defendant had been so arraigned and proceedings before the court had not concluded.

42

(1) Where a judge advocate has power to direct the arrest of a defendant under section 111 (including that section as applied by rule 41), he also has power to issue a warrant for the defendant's arrest.

(2) A warrant issued under this rule—

(a) must be addressed to one or more officers of a civilian police force;

(b) must state the offence with which the defendant is charged; and

(3) Where a defendant is arrested under a warrant issued under this rule and is transferred to service custody, subsection (4) of section 111 shall apply as if he had been arrested under that section.

43

(1) Where a charge is allocated for Court Martial trial, the Director must, as soon as is practicable—

(a) serve advance information in relation to all defendants on the court administration officer; and

(b) serve advance information in relation to each defendant on—

(i) that defendant; and

(ii) that defendant's legal representative (if any).

(2) “Advance information”, in relation to any defendant, means—

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

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

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

(4) Where paragraph (3) applies in the course of trial proceedings, the reference in that paragraph to the court administration officer is to be read as a reference to the judge advocate.

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

44

(1) Where a charge is such that, if a defendant to the charge were convicted of it by the court, the court would have power to make an activation order, the advance information in relation to the defendant must include a notice that the court would have that power if he were convicted.

(2) Where a defendant—

(a) has been conditionally discharged by virtue of Schedule 3 to the 2006 Act, and

(b) 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 under section 186(2) for the offence for which he was conditionally discharged.

(3) Where an overseas community order is in force in respect of a defendant, the advance information in relation to him must include a notice that, if he were convicted of the offence while the overseas community order is in force, the court would have the powers conferred by paragraph 25 of Schedule 10 to the Sentencing Code.

45

On receipt of the advance information in relation to a charge, the court administration officer must—

(a) forward it to the Judge Advocate General and request him to specify a judge advocate for preliminary proceedings in relation to the charge; and

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

46

(1) The court administration officer must appoint a time and place for further preliminary proceedings if so directed by—

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

(b) the Judge Advocate General.

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

(a) on the oral application of the Director or a defendant; or

(b) of his own motion.

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

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

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

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

(d) subject to rule 47 (preliminary proceedings in chambers without notice), must be served on every other party to the proposed trial proceedings.

47

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

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

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

48

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

49

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

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

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

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

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

(a) the judge advocate who gave it; or

(b) the judge advocate for any related proceedings.

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

(a) by the judge advocate who made it;

(b) by the judge advocate for any related proceedings; or

(5) Section 166 (fitness to stand trial) applies in preliminary proceedings as it applies on a trial by the court.

50

(1) The Appeal Court shall have jurisdiction to hear an appeal against any order or ruling made in preliminary proceedings.

(2) An appeal under this rule may be brought only with leave of the Appeal Court.

(3) A judge advocate may continue preliminary proceedings notwithstanding that leave to appeal has been granted under paragraph (2), but related proceedings (other than further preliminary proceedings) may not commence until the appeal has been determined or abandoned.

51

(1) The court may try two or more charges together, if they are included in the same charge sheet.

(2) Where in accordance with regulations made under section 128 the charges in two or more charge sheets could have been included in the same charge sheet, the Director may consolidate both or all the charge sheets into one.

(3) Where the Director consolidates two or more charge sheets into one, he must immediately serve the new charge sheet on the court administration officer and each defendant.

52

Where a defendant is charged with more than one offence in the same charge sheet, a judge advocate may direct, before the commencement of trial proceedings in relation to the charge sheet, that the charges be divided between two or more charge sheets.

53

Where two or more defendants are charged in a single charge, a judge advocate may direct, before the commencement of trial proceedings in relation to the charge, that the charge be replaced with charges against the defendants separately and in separate charge sheets.

54

(1) Where in preliminary proceedings (whether before or after arraignment) or trial proceedings it appears to the judge advocate that the charge sheet or any charge is defective, he shall make such order for the amendment of the charge sheet or charge (as the case may be) as appears necessary to meet the circumstances of the case.

(2) But the judge advocate may not make an order under this rule if, in all the circumstances, the required amendments cannot be made without injustice.

(3) Without prejudice to the generality of paragraph (2), in relation to a proposed amendment in preliminary proceedings the circumstances relevant for the purposes of that paragraph include (in particular) whether the defendant has been arraigned.

(4) Where an order is made under this rule, the Director shall serve the amended charge sheet on every defendant in the way that would be required by regulations made under section 128—

(a) if the amendment had been made otherwise than in accordance with an order made under this rule; and

(b) where the amendment is made after arraignment, if it had been made before arraignment.

55

(1) Where in preliminary proceedings the judge advocate is of opinion that, in consequence of the exercise of any power of the court under this Part, it is in the interests of justice—

(a) that the commencement of the trial proceedings be postponed, or

(b) that a defendant be arraigned or re-arraigned on any charge,

the judge advocate shall make such order or give such direction as appears necessary.

(2) Where in trial proceedings the judge advocate is of opinion that in consequence of the exercise of any power of the court under this Part it is in the interests of justice—

(a) that the proceedings be adjourned,

(b) that the lay members be discharged, or

the judge advocate shall make such order or give such direction as appears necessary.

56

(1) A defendant shall be arraigned in preliminary proceedings on each charge brought against him, but need not be arraigned on every charge at the same time.

(2) A defendant shall be required to plead separately to each charge on which he is arraigned.

(3) Where a defendant pleads guilty to a charge, the judge advocate may accept the plea if satisfied that the defendant understands—

(a) the nature of the charge;

(b) the general effect of the plea; and

(4) Where the judge advocate accepts a plea of guilty to a charge—

(a) the defendant shall stand convicted of the charge; and

(b) unless there is a further charge against him to which he has not pleaded guilty (or as respects which a plea of guilty has not been accepted by the judge advocate), the court administration officer shall appoint a time and place for sentencing proceedings.

(5) Where—

(a) a plea of guilty is not accepted by the judge advocate, or

(b) the defendant does not plead (or does not plead intelligibly) to the charge,

the judge advocate shall record a plea of not guilty.

57

Where the judge advocate accepts a plea of guilty to any charge, the judge advocate may (with the Director's consent) order that any other charge—

(a) to which the defendant has not pleaded,

(b) to which the defendant has pleaded not guilty, or

is to lie on the file, not to be proceeded with without the leave of the court or the Appeal Court.

58

(1) Where—

(a) a defendant has pleaded not guilty to a charge, or the judge advocate has recorded a plea of not guilty to the charge under rule 56(5), and

(b) the Director indicates that he intends to offer no evidence on the charge,

the judge advocate shall record a finding of not guilty in respect of the charge.

(2) A finding of not guilty recorded under this rule shall have effect for all purposes as an acquittal by the court.

59

(1) At any time before the lay members withdraw to deliberate on their finding on a charge, a defendant who has pleaded not guilty to the charge may withdraw his plea and substitute a plea of guilty.

(2) But a judge advocate may not accept a plea of guilty substituted under paragraph (1) unless satisfied that the defendant understands the matters mentioned in rule 56(3).

(3) At any time before the court begins to deliberate on its sentence for an offence, a defendant who has pleaded guilty to the charge of the offence may, with the leave of a judge advocate, withdraw his plea and substitute a plea of not guilty.

(4) Where a defendant changes his plea under paragraph (3)—

(a) in the course of sentencing proceedings in relation to the offence, or

(b) in the course of trial proceedings in relation to another charge,

the judge advocate shall terminate the proceedings.

60

(1) After a defendant has been arraigned on a charge, the Director may not exercise any of the powers under section 125(2) in relation to him without the leave of the court.

(2) Where—

(a) section 130(2) prohibits the Director from referring a charge to the defendant's commanding officer without the written consent of the defendant, and

(b) the defendant gives his written consent to such a referral,

this rule does not require leave for the referral.

(3) Where a defendant has been arraigned and the Director (with leave) exercises any of the powers under section 125(2)(a) to (c) in relation to him, the Director shall serve the amended charge sheet on every defendant in the way that would be required by regulations made under section 128 if the power had been exercised before arraignment.

61

(1) This rule applies where the Appeal Court quashes a conviction and makes an order under section 19 of the 1968 Act authorising the appellant to be retried.

(2) Rule 56 (arraignment) applies, but rule 60 applies whether or not the defendant has been re-arraigned.

(3) Rule 60(1) does not require leave of the court for anything authorised by the order of the Appeal Court (including any direction by that court under section 19(4) of the 1968 Act).

(4) The Director may not refer any charge to the defendant's commanding officer, or allocate it for trial by the Service Civilian Court.

(5) The Director may not discontinue proceedings on any charge, unless at the same time he makes a direction under section 127(2) (direction barring further service or civilian proceedings) in relation to the charge.

62

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

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

(b) the court administration officer.

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

(3) Where a witness summons is issued under rule 63 or 65, the court administration officer shall serve it on the person to whom it is directed.

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

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

63

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

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

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

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

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

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

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

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

(5) The application must—

(a) identify the proposed witness;

(b) explain—

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

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

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

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

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

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

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

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

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

for inspection by the applicant.

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

64

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

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

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

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

(3) The judge advocate may invite—

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

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

to help the judge advocate assess the objection.

65

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

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

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

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

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

(a) the witness, on the grounds that—

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

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

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

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

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

66

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

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

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

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

(b) either—

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

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

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

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

(b) either—

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

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

(5) An application under this rule—

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

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

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

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

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

(7) Where—

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

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

rule 64(2) and (3) apply, with references to “the objection” read as references to the matters mentioned in paragraph (3)(b) or (4)(b) (as the case may be).

67

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.