The Armed Forces (Interpretation, Translation and Alcohol and Drug Tests) Rules 2013

Made: 2nd October 2013

Laid before Parliament: 4th October 2013

Coming into force

The Secretary of State makes the following Rules in exercise of the powers conferred by sections 112, 151, 153, 163 and 288 of the Armed Forces Act 2006[^f00001]:

Citation and commencement

1

• (1) These Rules may be cited as the Armed Forces (Interpretation, Translation and Alcohol and Drug Tests) Rules 2013.

• (2) Rules 1 to 7, 9, 10, 12 to 17 and 19 to 21 of these Rules shall come into force on 27th October 2013, and the remainder on 1st November 2013.

Custody proceedings rules

2

The Armed Forces (Custody Proceedings) Rules 2009[^f00002] are amended as follows.

3

For rule 20 (interpreters) substitute—

(20) (1) Where a person to whom 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 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; 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 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 (c) the person complains about the quality of any interpretation or translation provided. (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 judge advocate and others present at the hearing to understand them, and references to interpretation shall be construed accordingly. (8) 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 judge advocate and others present at the hearing were to the legal representative.

4

In rule 22(2) (matters to be included in record of proceedings)—

• (a) at the end of sub-paragraph (a), omit “and”;

• (b) at the end of sub-paragraph (b)—

• (i) substitute a semi-colon for the full stop;

• (ii) after that semi-colon, insert—

(c) a record of the identity of any interpreter; (d) a record of any decision on an application under rule 20(5); (e) a record of any agreement under rule 20(5)(b) to do without a written translation of a document or part of a document; and (f) a record of any direction given under rule 20(6).

Summary Appeal Court rules

5

The Armed Forces (Summary Appeal Court) Rules 2009[^f00003] are amended as follows.

6

For rule 29 (interpreters) substitute—

(29) (1) Where an appellant is due to attend a hearing, the court administration officer, unless satisfied that the appellant 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 an appellant 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 appellant (including, in the case of an appeal against finding, the case against the appellant); or (b) the appellant agrees to do without, and the judge advocate is satisfied— (i) that the agreement is clear and voluntary; and (ii) that the appellant has had legal advice or otherwise understands the consequences. (6) On application by the appellant, 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 appellant; or (c) the appellant complains about the quality of any interpretation or translation provided. (7) In relation to an appellant who has a hearing or speech impediment, references in these Rules to an interpreter include a person appointed— (a) to communicate to the appellant anything said at the hearing, and explain it so far as necessary to enable the appellant to understand it, or (b) to communicate any answers given by the appellant, and any other matters that the appellant 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 this rule references to acting at a hearing include assisting the appellant to communicate with the appellant’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.

7

At the end of rule 30(2) (matters to be included in record of proceedings)—

• (a) substitute a semi-colon for the full stop;

• (b) after that semi-colon, insert—

(f) a record of the identity of any interpreter; (g) a record of any decision on an application under rule 29(5); (h) a record of any agreement under rule 29(5)(b) to do without a written translation of a document or part of a document; and (i) a record of any direction given under rule 29(6).

8

After rule 74 insert—

(74A) (1) This Chapter applies to proceedings for the hearing of an appeal against a finding that a relevant charge has been proved. (2) In paragraph (1) “relevant charge” means a charge of an offence under— (a) section 20(1)(a) of the Act (unfitness for duty through alcohol or drugs); or (b) section 20A[^f00004] of the Act (exceeding alcohol limit for prescribed safety-critical duties). (3) In this Chapter “drug”, “medical establishment”, “service police establishment” and “service policeman” have the meanings given by section 93I[^f00005] of the Act. (74B) (1) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the appellant shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account and, subject to paragraph (2), it shall be assumed that the proportion of alcohol in the appellant’s breath, blood or urine at the time of the alleged offence was not less than in the specimen. (2) That assumption shall not be made if the appellant proves— (a) that he consumed alcohol before he provided the specimen or had it taken from him, and after the time of the alleged offence; and (b) that had he not done so the proportion of alcohol in his breath, blood or urine— (i) in the case of an offence under section 20(1)(a) of the Act, would not have been such as to impair his ability to carry out the duty in question; (ii) in the case of an offence under section 20A of the Act, would not have exceeded the relevant limit (within the meaning of that section). (3) A specimen of blood shall be disregarded unless— (a) it was taken from the appellant under section 93E of the Act; or (b) it was taken from the appellant under section 93G of the Act and the appellant subsequently gave his permission for a laboratory test of the specimen. (4) Where, at the time a specimen of blood or urine was provided by the appellant, he asked to be provided with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the Director unless— (a) the specimen in which the alcohol or drug was found is one of two parts into which the specimen provided by the appellant was divided at the time it was provided; and (b) the other part was supplied to the appellant. (5) Where a specimen of blood was taken from the appellant under section 93G of the Act, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the Director unless— (a) the specimen in which the alcohol or drug was found is one of two parts into which the specimen taken from the appellant was divided at the time it was taken; and (b) any request to be supplied with the other part which was made by the appellant at the time when he gave his permission for a laboratory test of the specimen was complied with. (74C) (1) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine may, subject to paragraphs (3) and (4) and to rule 74B(4) and (5), be given by the production of a document or documents purporting to be whichever of the following is appropriate, that is to say— (a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a service policeman (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the appellant at the date and time shown in the statement; and (b) a certificate signed by an authorised analyst as to the proportion of alcohol or any drug found in a specimen of blood or urine identified in the certificate. (2) Subject to paragraphs (3) and (4), evidence that a specimen of blood was taken from the appellant with his consent by a registered medical practitioner or a registered nurse may be given by the production of a document purporting to certify that fact and to be signed by a registered medical practitioner or registered nurse. (3) Subject to paragraph (4)— (a) a document purporting to be such a statement or such a certificate (or both such a statement and such a certificate) as is mentioned in paragraph (1)(a) is admissible in evidence on behalf of the Director in pursuance of this rule only if a copy of it either has been handed to the appellant when the document was produced or has been served on him not later than seven days before the hearing; and (b) any other document is so admissible only if a copy of it has been served on the appellant not later than seven days before the hearing. (4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not so admissible if the appellant, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the Director requiring the attendance at the hearing of the person by whom the document purports to be signed. (5) In this rule “authorised analyst” means— (a) any person possessing the qualifications prescribed by regulations made under section 27 of the Food Safety Act 1990[^f00006] as qualifying persons for appointment as public analysts under that Act; and (b) any other person authorised by the Secretary of State to make analyses for the purposes of section 16 of the Road Traffic Offenders Act 1988[^f00007] or this rule.

Summary hearings etc rules

9

The Armed Forces (Summary Hearing and Activation of Suspended Sentences of Service Detention) Rules 2009[^f00008] are amended as follows.

10

After rule 11 insert—

(11A) (1) This rule applies unless the commanding officer is satisfied that the accused does not need interpretation. (2) The commanding officer shall appoint an interpreter to act at the hearing. (3) On application or on his own initiative, the commanding officer may require a written translation of any document or part of a document to be provided for the accused, unless― (a) translation of that document, or part, is not needed to explain the case against the accused; or (b) the accused agrees to do without, and the commanding officer is satisfied— (i) that the agreement is clear and voluntary; and (ii) that the accused has had legal advice or otherwise understands the consequences. (4) If so requested by the accused, the commanding officer shall take such steps as he thinks appropriate, including the appointment of a different interpreter, where― (a) no interpretation is provided; (b) no translation is required, or provided, in response to a previous request by the accused; or (c) the accused complains about the quality of any interpretation or translation provided. (5) Where the accused has a hearing or speech impediment, references in this rule to an interpreter include a person appointed— (a) to communicate to the accused anything said at the hearing, and explain it so far as necessary to enable the accused to understand it, or (b) to communicate any answers given by the accused, and any other matters that the accused seeks to convey, and explain them so far as necessary to enable the commanding officer to understand them, and references to interpretation shall be construed accordingly.

11

After rule 15 insert—