Section 8: Custody Rules

30. This section inserts a new section into each of the SDAs enabling the Secretary of State to make rules regulating proceedings preliminary to, and at, a custody hearing. These rules will be made by statutory instrument. Subsection (2) of the inserted sections lists matters that are expected to be dealt with in the rules, such as representation and witnesses, but this list is not exhaustive.

Section 9: Bail in proceeding for illegal absence.

31. This section amends each of the SDAs and Schedule 2 of the Reserve Forces Act 1996.

Subsection (1) amends section 187 of the Army Act 1955 dealing with proceedings before a civil court where a person is suspected of illegal absence. At the moment, if anyone who is illegally absent from the Army is brought before a magistrate on suspicion of being an absentee or a deserter, the legislation requires the magistrate to either deliver him into military custody or hold him in custody. There is no provision for bail. The effect of the amendment is to allow the magistrate to remand him either into custody or on bail, as he sees fit.

Subsection (2) amends section 187 of the Air Force Act 1955 in the manner described above.

Subsection (3) amends section 109 of the Naval Discipline Act 1957 to produce the same result as described above.

Subsection (4) amends Schedule 2 of the Reserve Forces Act 1996 to produce the same result as described above.

Section 10: Further amendments relating to custody

32. This section introduces Schedule 1 to the Act which makes the following further minor amendments to the SDAs in respect of custody arrangements.

• Paragraphs 1&6 amend the three SDAs provide that offences which can be committed in relation to courts-martial in each of the Acts, such as failure to comply with a summons or the refusal of a witness to answer a question which the court requires him to answer, can also be committed in relation to persons appointed to be judicial officers for the purposes of the Act. This will allow an offence committed in relation to judicial officers to be tried summarily by the judicial officer.

• Paragraphs 2&8 amend the three SDAs to provide that the meaning of commanding officer encompasses those dealing with persons in custody as well as those charged with an offence.

• Paragraphs 3&9 amend the three SDAs to provide that offences which can be committed by civilians not subject to Service law, in relation to courts-martial, such as those mentioned above, shall also apply to judicial officers. In these cases, the judicial officer cannot apply a sanction but can certify to a court with jurisdiction over the offender that he has committed a contempt of court. This will allow the court to investigate and punish the offender if appropriate.

• Paragraph 4 amends section 209(3) of both the Army and Air Force Acts to provide that persons have to comply with conditions which may be imposed by the judicial officer, judge advocate or court-martial relating to his subsequent attendance at any hearing relating to the offence charged.

• Paragraphs 5&11 amend the general provisions as to interpretation in both the Army Act 1955 and Air Force Acts to reflect the changes to the system.

• Paragraph 10 amends section 118 of the Naval Discipline Act 1957 to apply the custody provisions to deserters from the Commonwealth and colonial forces.

• Paragraph 12 amends Schedule 4 to the Naval Discipline Act 1957 to provide that the custody provisions shall apply to certain civilians and also to provide that these civilians have to comply with conditions which may be imposed by the judicial officer, judge advocate or court-martial relating to his subsequent attendance at any hearing relating to the offence charged.

Sections 11 - 12: Election for court-martial trial

Arrangements in force prior to commencement of this Act

33. It was explained in paragraph 6 that an accused serving in the Army or Royal Air Force may, in all cases, elect trial by court-martial instead of being dealt with summarily by the CO. In the Royal Navy, this right to elect applies only in certain cases with the aim of ensuring that every person facing a charge which has potentially serious consequences, such as disrating (ie loss of rank), detention, imprisonment, or dismissal, has the right to elect trial by court-martial. In the Army and Air Force, the right to elect to be dealt with by court-martial can only be exercised after a CO has found the charge proved. Moreover, a court-martial has the power to award a greater sentence than the CO could have done.

34. The right to elect trial by court-martial was expanded by the Armed Forces Act 1996 because of concerns that summary proceedings, on their own, might not be compliant with the European Convention on Human Rights. It was considered that offering a wider right to trial by a court complying with the Convention would meet such concerns.

The new arrangements

35. With the introduction in this Act of a summary appeal court, the procedures for electing trial by court-martial have been reviewed. In order to allow the accused the right to be dealt with from the outset by a court complying with the Convention, the accused is now to be offered this right prior to the CO hearing the evidence on the charge. The right to elect court martial trial will, in future, be available at the outset of any summary proceedings and at any subsequent time should the authorities amend or change the charge. In the Royal Navy, election for court-martial trial is already made prior to the CO hearing the charge.

36. To ensure that an accused is not disadvantaged by electing court-martial trial, the sentencing powers of the court-martial will be limited to those that the CO could have exercised if he had heard that particular charge. However, should the prosecuting authority amend a charge and refer it back to the CO, the CO may decide that it is an offence that should be tried by court-martial, without the accused having the option of being dealt with summarily. In this case the sentencing powers of the court martial would not be restricted to those of the CO.

37. In the Royal Navy, officers are not dealt with summarily. In the Army and Royal Air Force, cases where warrant officers and officers up to and including the rank of Major or Squadron Leader are dealt with summarily are heard by an appropriate superior authority (ASA) rather than by the CO; an ASA is an officer superior in rank to the CO. However, throughout these notes, references to CO will encompass references to ASA for convenience.

Section 11: Right to elect court-martial trial

38. This section inserts a new section into both the Army and Air Force Acts 1955.

The new section 76AA deals with the process of electing trial by court-martial.

• Where a charge or number of charges are to be dealt with summarily, this section requires the CO to give the accused the right to elect trial by court-martial prior to the commencement of any summary dealings and, if the accused should elect to be dealt with by court-martial, the case is to be referred to a higher authority in the chain of command.

• If the accused is later given leave to withdraw his election, the case will be passed back to the CO to be dealt with summarily and the accused will not be permitted to re-elect trial by court-martial.

• If the charge or charges are changed in any way, and the new charge is one which can be dealt with summarily, the section requires the accused to be given the opportunity to elect trial by court-martial in respect of the new charge.

• The section also makes amendments to section 76B of each Act as a consequence of these changes.

Section 12: Limits on powers of courts-martial where accused elected court-martial trial

39. This section inserts a new section into each of the three SDAs.

Subsection (1) inserts a new section into both the Army and Air Force Acts 1955.

• The new section 85A imposes a limit on the power of a court-martial to award a punishment in cases that have come before them as a result of an election. The maximum punishment that the court-martial can award is limited to the maximum that the CO could have awarded if he had dealt with the case summarily.

• Subsection (3) of section 85A provides that a court-martial shall not be restricted in its sentencing power in relation to a charge before them, if the original charge on which election was made was referred back to the CO by the prosecuting authority and the fresh charge was dealt with by the CO under section 83BB. For example, if the prosecuting authority refer the original charge back to the CO because they consider that a more serious charge would be appropriate, the CO must deal with the suggested charge afresh. If it is not one that he would consider appropriate to be dealt with summarily, he may refer it directly to the prosecuting authority under section 76(1) of the Army or Air Force Act and the limitation on sentencing imposed by election would not arise.

Subsection (3) inserts a new section 62ZA into the Naval Discipline Act 1957. This section is similar in effect to that described in subsection (1) but has an additional provision. In determining the maximum, subsection (3) of section 52F provides that punishments which the CO could only have awarded with the consent of a superior officer are included. This provision is not required for the Army and Air Force because consent for extended powers of punishment is granted prior to an individual being given the opportunity to elect for trial.

Section 13: Functions of prosecuting authority

40. This section introduces Schedule 2 to the Act. This schedule amends the SDAs in relation to the functions and role of the prosecuting authority concerning cases where an election for court-martial trial has been made.

Paragraph 1 amends section 83B of the Army and Air Force Acts 1955.

• Currently an individual can only elect trial by court-martial after the CO has found the charge proved. If a defendant chooses to be tried by court-martial, the case is passed to the prosecuting authority (the authority in each Service responsible for prosecuting in court-martial trials). If the accused subsequently changes his mind, the prosecuting authority must send the case back to the CO so that the original finding of guilt can be recorded. However, under the provisions in this Act, an individual will exercise the option of court-martial trial prior to the case being heard summarily. If he exercises this right and then changes his mind, the case sent back by the prosecuting authority will be heard from the beginning when it is dealt with summarily by the CO. A similar provision is not needed for the Royal Navy as they already allow an election to be made before summary trial.

• A new subsection (9A) is inserted which provides that the prosecuting authority may not prefer a new charge or amend, substitute or add another charge, unless the accused has given his written consent.

• Subsection (13) is replaced with a new subsection. Cases may arise where for whatever reason the prosecuting authority considers it inappropriate to prefer a charge on the basis of the charge determined by the CO or may decide to discontinue proceedings on any charge they have preferred. In those circumstances, the prosecuting authority will exercise its discretion not to proceed to court-martial. This revised subsection gives the prosecuting authority a power to direct that the charge brought against the accused by the CO is deemed to have been heard by court-martial, to ensure that the individual cannot be tried summarily on this same charge at a later date.

Paragraph 2 provides for similar amendments to the Naval Discipline Act 1957.

Paragraph 3 inserts a new section 83BB into the Army and Air Force Acts 1955. It applies to cases that have been referred to the prosecuting authority as a result of election for court-martial trial, where the authority decides to substitute or add a charge. In these circumstances, the prosecuting authority may refer the case back to the CO. Once the suggested charge or charges are referred back, the CO then decides, as happens now, whether to dismiss the charge, refer it for court-martial or deal with it summarily.

Paragraph 4 inserts a new section 52II into the Naval Discipline Act 1957. This section is identical in effect to that described above.

Paragraphs 5&6 create a power to make rules addressing how an election relating to multiple charges shall be dealt with by the prosecuting authority and CO where charges are discontinued, amended or substituted.

Sections 14 - 25: Summary Appeal Courts

The new arrangements

41. The Act will introduce a right of appeal to a summary appeal court established under each of the three SDAs. This supplements the right to elect trial by court-martial described in the previous section of these notes, by offering to those who have been dealt with summarily a second avenue to a court that is compliant with the European Convention on Human Rights.

42. The summary appeal court for each Service can sit in two or more divisions (that is, a number of courts can sit in different places to hear different cases at the same time). When hearing an appeal, the court will consist of a judge advocate/naval judge advocate and two Service officers, generally of the same Service as the appellant.

43. The appeal on finding, or on finding and sentence, will take the form of a re-hearing along the lines of an appeal to the Crown Court from a decision of the magistrates' court. Therefore, the rules of the court will be similar to those of the Crown Court. The rules of evidence will mirror those in the civilian system, with appropriate modifications. Where the appeal is on sentence alone, and there is no material dispute on the facts, the court will only hear a statement of facts followed by pleas in mitigation.

44. The appellant will be entitled to legal representation at the hearing of his appeal before the summary appeal court. He will also be entitled to apply for legal aid for this purpose, under the Services' legal aid system.

45. The sentencing powers of the summary appeal court will be restricted so that the sentence cannot be more severe than that actually imposed by the CO. Hearings before the summary appeal court will be in public. There will be no appeal from the summary appeal court on the facts, but an appeal on a point of law will be allowed to the High Court.

Section 14: Summary Appeal Courts

46. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section into both the Army and Air Force Acts 1955.

The new section 83ZA creates a summary appeal court to hear appeals against findings and sentences awarded summarily by COs. The section specifies the composition of the court and refers to the qualifications needed to sit on the court. These qualifications are explained in the following sections. The section also specifies where the court may sit and that it may sit in two or more divisions at once. Provision is made for the appointment of a court administration officer whose functions will include that of determining when and where the court is to sit.

Subsection (2) inserts a new section 52FF into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1).

Section 15: Appointment of judge advocates

47. This section inserts a new section into each of the SDAs.

Subsection(1) inserts a new section 83ZB into both the Army and Air Force Acts 1955. This section requires that judge advocates for the summary appeal court be appointed by the Judge Advocate General. It also refers to the section in the Acts specifying the necessary qualifications, i.e. at least five years standing as a qualified lawyer.

Subsection (2) inserts a new section 52FG into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) although it refers to the Chief Naval Judge Advocate as the appointing authority in this case.

Section 16: Officers qualified for membership of the Summary Appeal Court

48. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section 83ZC into the Army Act 1955. This section permits, with exceptions, any officer, who has held a commission in the Services for a total of two years or more, to sit as a member of the summary appeal court. There are two exceptions to this rule. Subsection(2) of the new section 83ZC allows rules to be made permitting officers who do not meet the qualifying criteria to be allowed to sit as members, in certain circumstances. Subsection(3) of the new section 83ZC excludes from membership various categories of persons, i.e. provost officers, lawyers, and the prosecuting authority and court administration officer or their staffs. Exchange officers who have a legal qualification from a Commonwealth country are also excluded. The exclusion of lawyers is intended to avoid undue influence on lay members of the court. (Similar reasoning underlies the exclusion of lawyers from juries in civilian criminal courts).

Subsection(2) inserts a new section 83ZC into the Air Force Act 1955. This section is identical in effect to that described above.

Subsection (3) inserts a new section 52FH into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) above, except that an officer is required to have held a commission for three years before he is qualified to sit as a court member. The commissioned service requirements for membership of the summary appeals court mirror those in each Service for membership of a court-martial.

Section 17: Constitution of Summary Appeal Court for appeals

49. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a section 83ZD into both the Army and Air Force Acts 1955. This section specifies that the court shall consist of one judge advocate and two officers, qualified as described above, subject to any rules made regulating practice and procedure. For each appeal, the judge advocate will be chosen by or on behalf of the Judge Advocate General and the officers will be chosen by the court administration officer.

Subsection (2) inserts a new section 52FJ into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) above except that it provides for the judge advocates to be chosen by or on behalf of the Chief Naval Judge Advocate, and also provides that at least one member of the court holds a minimum rank of commander and that the most senior member of the court at that sitting shall act as president.

Section 18: Right of appeal

50. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section 83ZE into both the Army and Air Force Acts 1955. This section provides that anyone who is dealt with summarily and found guilty may appeal against the finding, the sentence or both. The section imposes a time limit of 14 days from the date the sentence was awarded to lodge an appeal, although the court may extend this period at its discretion. It can also give leave to appeal at any time after the 14 day period has expired. In the case of an appeal, the section provides that the respondent (that is, the other party to the appeal) will be the prosecuting authority.

Subsection (2) inserts a new section 52FK into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) above.

Section 19: Hearing of appeals

51. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section 83ZF into both the Army and Air Force Acts 1955. This section provides as follows:

• An appeal against a finding of conviction shall be by way of a rehearing (so that the whole case will be heard again).

• Appeals against sentence will also be by way of rehearing but only the evidence relevant to sentencing will be reheard.

• Appeals will generally be heard in open court unless the rules of procedure of the court allow otherwise and will be conducted in accordance with the law of England and Wales.

• Questions of law, procedure and practice will be decided by the judge advocate and any directions given by him will be binding on the court.

Subsection (2) inserts a new section 52FL into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) above.

Section 20: Powers of the Summary Appeal Court

52. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section 83ZG into both the Army and Air Force Acts 1955. This section provides that:

• When a finding of guilt is appealed, the summary appeal court may either confirm this finding, quash it, or substitute a finding that another charge has been proved, if this alternative would have been available to the CO at the original hearing.

• Where the court does quash a finding, the court shall also quash the punishment that went with it or, in the case of a number of findings, the punishments that went with each of the individual findings. Where the punishment relates to a number of findings, one or more of which is quashed but with some remaining, the court may vary the overall punishment. This is provided that the substituted punishment is one that the CO could have awarded originally and is no more severe than the original punishment.

• Where the court confirms the original finding or substitutes another, the court may vary the punishment as long as the substituted punishment is one which the CO could have awarded originally and it is no more severe than the original punishment.

• On an appeal against punishment only, the court may confirm the original punishment or substitute another, as long as the substituted punishment is one which the CO could have awarded originally and it is no more severe than the original punishment.

• Any substituted finding or punishment will be deemed to have been awarded by the officer who conducted the original summary trial and any substituted punishment will be treated as having been imposed at the date of the original punishment.

Subsection (2) inserts a new section 52FM into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) above.

Section 21: Making of, and appeals from, decisions of the court.

53. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section 83ZH into both the Army and Air Force Acts 1955. This section provides for majority decisions and for an appeal to the High Court by case stated on a point of law.

Subsection (2) inserts a new section 52FN into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) above.

Section 22: Rules

54. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section 83ZJ into both the Army and Air Force Acts 1955. This section provides that the Secretary of State may, by statutory instrument, make rules to regulate the practice and procedure of the court. These rules of practice and procedure will deal with a number of matters set out in detail in the section, although this list is not exhaustive. Examples of these are:

• the procedure to be followed when the court deals with matters at a preliminary hearing before a full appeal hearing, such as giving directions or making preliminary rulings on, for example, admissibility of evidence,

• allowing the appellant to object to members of the court, and

• the admissibility of evidence.

The section also provides that any legislation relating to the practice and procedure of courts-martial may be applied to the summary appeal court with any appropriate modifications.

Subsection (2) inserts a new section 52FP into the Naval Discipline Act 1957. This section is similar in effect to that described in subsection (1) above.

Section 23: Oaths required of members of the court

55. This section inserts a new section into each of the SDAs.

Subsection (1) inserts a new section 83ZK into both the Army and Air Force Acts 1955. This section requires every member of the court to swear an oath prior to sitting as a member of the court. The general interpretation provisions in each Act already provide that "oaths" include "affirmations". Rules governing how these oaths are sworn may be made by statutory instrument.

Subsection (2) inserts a new section 52FQ into the Naval Discipline Act 1957. This section is identical in effect to that described in subsection (1) above.

Section 24: Privileges of witnesses and others

56. This section inserts a new section into each of the SDAs providing that witnesses will have the same privileges and immunities as they would if they had been called before the High Court of England and Wales. This provision mirrors that in the three SDAs for witnesses appearing before courts-martial.

Section 25: Further amendments relating to the Summary Appeal Courts

57. This section introduces Schedule 3 to the Act which makes further amendments to the SDAs in respect of the summary appeal court. These include:

• Paragraphs 1,2 &3 amend the three SDAs to provide that offences which can be committed in relation to courts-martial in each of the Acts, such as failure to comply with a summons or the refusal of a witness to answer a question which the court requires him to answer, can also be committed in relation to the summary appeal courts. An offence committed in relation to the summary appeal court can be tried by court-martial or, in certain cases, by the summary appeal court itself.

• Paragraphs 4&5 amend the three SDAs to allow regulations in respect of summary dealing to include provisions dealing with the procedure for making and withdrawing election for court-martial trial.

• Paragraphs 6&7 amend the three SDAs to provide that offences which can be committed by civilians not subject to Service law, in relation to courts-martial, such as those mentioned above, shall also apply to summary appeal courts. In these cases, the summary appeal court cannot apply a sanction but can certify to a court with jurisdiction over the offender that he has committed a contempt of court. This will allow the latter court to investigate and punish the offender if appropriate. The paragraphs also make the necessary technical and drafting amendments which arise because of these changes.

• Paragraphs 8-11 amend the three SDAs to make new provisions about the commencement sentences of detention awarded by the CO. Currently they take effect immediately. In the new system, any sentence of detention will be suspended until the period in which an appeal can be brought has elapsed or, if an appeal is lodged within that period, until the appeal has been heard, unless the accused chooses to begin serving his sentence as soon as it is awarded. If an accused is serving his sentence and an appeal brought, the remainder of the sentence will be suspended until the appeal is decided.

• Paragraphs 12&13 insert new provisions in the three SDAs dealing with consecutive terms of detention. If the CO orders that a sentence of detention is to run from the expiry of any sentence of detention currently being served, the date of the award when the offender shall be deemed to have begun his sentence will be the date of the expiry of the current sentence. Where a sentence would normally begin once an appeal has been determined, the new sentence will be deemed to have begun at the date of the expiry of the current sentence if that is later.

• Paragraphs 14&15 amend the sections in the three SDAs which deal with limitations on total periods of detention. An individual cannot be continuously detained for more than two years maximum if serving consecutive sentences of detention. The amendments provide that for the purposes of this limit, two periods of detention which are interrupted by a period of suspension, (by virtue of the amendments made by paragraphs 6-9) are to be taken to be continuous. This ensures that a person whose sentence is suspended still benefits from the application of the limits.

• Paragraph 16 amends the Army and Air Force Acts 1955 to reflect the introduction of the summary appeal court. Section 131 of the Army and Air Force Acts 1955 currently allows an individual, who is no longer subject to Service jurisdiction, to be tried under the Acts for offences he is suspected of having committed whilst he was still subject to Service law. The section allows him to be retained for the purposes of, inter alia, arrest, custody or trial, and it is amended to include the period of an appeal to the summary appeal court.

• Paragraphs 17&18 deal with membership of the summary appeal court when it is hearing an appeal by a civilian. They amend the SDAs to allow one or both of the officers on a court to be replaced by civilians in the service of the Crown who are themselves subject to Service law. The paragraphs also provide that these civilians are deemed to be qualified to sit on a court for the purposes of the provisions inserted by section 16 above.

• Paragraphs 19&20 amend the provisions in the three SDAs dealing with review of summary findings and awards. At the moment, an accused may request a review of the summary finding and/or sentence. This is done by the reviewing authority who will normally be an officer superior in rank to the CO. A review of the finding and sentence can also be carried out by the Services at any other time. The reviewing authority's current powers allow him to carry out the function of an appeal system. The amendments to the SDAs remove the provisions allowing the accused to request a review and amend the powers of the reviewing authority in relation to summary dealings. This is because a court is being put in its place and the reviewing authority no longer needs the powers to quash findings etc; these will rest with the court. This does not prevent the reviewing authority from examining the decision of the CO and, if it thinks there is a miscarriage of justice, but the accused has not brought an appeal himself, referring the case to the summary appeal court (with the leave of the court). Additionally, the reviewing authority can refer to the summary appeal court, with the leave of the court, a case which it has already heard on appeal if the authority thinks that there are matters worthy of further consideration which were not put before the court at the time of the appeal. The reviewing authority also retains the residual power to quash a finding and the related punishment, in exceptional circumstances, This power would be exercised in cases where it was in the Service interest to do so. An example of such a case would be where an individual with specialist skills is urgently required for operational reasons.

• Paragraphs 21&22 make consequential amendments to provisions of the SDAs relating to the powers of the civil courts.

• Paragraphs 23&24 insert a definition of the summary appeal court into the interpretation section of each of the SDAs.