SCHEDULE 1 continued PART I continued
(1) In this Act “the commanding officer”, in relation to a person charged with an offence, means the officer in command of the ship or naval establishment to which he belongs at the time of the commission of the offence or at the time of its investigation or summary trial.
(2) The Defence Council may by regulations make provision—
(a) enabling the powers conferred by this Act on the commanding officer of an accused to be exercised by other persons of such descriptions as may be specified;
(b) with respect to the delegation by the commanding officer, or other person exercising the powers of a commanding officer by virtue of regulations under paragraph (a) above, of any of his powers to any officer not below the rank of lieutenant or corresponding rank.
(3) An officer to whom any powers are delegated by virtue of subsection (2)(b) above shall not have power to award any punishment other than a fine, stoppages or those described in section 43(1)(m) of this Act.
(4) The reference in subsection (3) above to stoppages does not include a reference to stoppages for personal injury.
(1) The Defence Council may make regulations with respect to the investigation of charges by commanding officers and summary trial.
(2) Regulations under this section may in particular make provision with respect to—
(a) the reporting of a charge to a commanding officer;
(b) the procedure to be followed by a commanding officer investigating a charge;
(c) the amendment or substitution of charges;
(d) the procedure on summary trial;
(e) limitations on the punishments which may be awarded on summary trial by a specified description of commanding officer;
(f) limitations on the punishments which may be so awarded to a specified description of accused;
(g) requirements for punishments to be approved before taking effect;
(h) the information to be provided to a person afforded an opportunity of electing court-martial trial;
(i) the procedure for electing court-martial trial, including any period within which any such election may be made;
(j) the procedure for requesting leave to withdraw an election for court-martial trial and for withdrawing any such election;
(k) who may act as the higher authority.
(3) A regulation under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.
(1) If an officer of Her Majesty’s naval forces below the rank of commander is charged with an offence to which this section applies at a time when the force to which he belongs is on active service, the higher authority to whom the charge was referred may order a disciplinary court.
(2) A disciplinary court shall have power, subject to the provisions of this section and of any rules made under it, to try and punish the offence accordingly.
(3) This section applies to any offence triable by court-martial under this Act other than an offence under the following provisions—
(a) sections 2 to 4, 6, 9, 10, 23 and 24, section 29(1) so far as relating to public or service property, section 29A, and sections 34 to 37 and 42;
(b) sections 40 and 41, so far as applicable to an offence under any of the provisions mentioned in paragraph (a) of this subsection.
(4) A disciplinary court shall consist of not less than three nor more than five officers, at least one of whom is not below the rank of commander.
(5) An officer shall not be a member of a disciplinary court unless he is an officer of Her Majesty’s naval forces and is subject to this Act.
(6) The officer who orders a disciplinary court shall not be a member of the court.
(7) A disciplinary court shall not have power to award any punishment greater than dismissal from Her Majesty’s service.
(8) The Secretary of State may by statutory instrument make rules as to the assembling, constitution, procedure and practice of disciplinary courts.
(9) Rules under subsection (8) above may apply in relation to disciplinary courts and to proceedings of such courts, with the necessary modifications, any provisions of this Part of this Act or of rules under section 58 of this Act relating to courts-martial and proceedings of courts-martial.”
14 After section 83 of the Army Act 1955 there shall be inserted the following sections—
(1) Her Majesty may appoint a qualified officer belonging to Her military forces to be the prosecuting authority for the Army; and in this Act “the prosecuting authority” means the officer so appointed.
(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is—
(a) a person who has a ten year general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland of at least ten years' standing; or
(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least ten years' standing.
(1) This section applies where a case has been referred to the prosecuting authority.
(2) If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall—
(a) if the accused is an officer or warrant officer, refer the case to the appropriate superior authority;
(b) if the accused is a non-commissioned officer or soldier, refer the case to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to record a finding that the preliminary charge has been proved and award punishment accordingly.
(3) In subsection (2) above “the preliminary charge” means the charge for which punishment would have been awarded had the accused not elected court-martial trial.
(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall—
(a) determine any charge to be preferred and (subject to subsection (5) below) whether any such charge is to be tried by general court-martial or district court-martial; and
(b) prefer any charge so determined by him.
(5) The prosecuting authority shall not determine that a charge against an officer be tried by district court-martial.
(6) The prosecuting authority shall, in accordance with rules under section 103 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred and the description of court-martial by which that charge is to be tried; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.
(7) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
(8) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 103 of this Act—
(a) amend, or substitute another charge or charges for, any charge preferred;
(b) prefer an additional charge, or additional charges, against the accused;
(c) discontinue proceedings on any charge.
(9) The powers mentioned in subsection (8)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.
(10) The prosecuting authority may not exercise any power mentioned in subsection (8)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.
(11) If, before the commencement of the trial of a charge against the accused (“the original charge”), the prosecuting authority exercises the power mentioned in subsection (8)(b) above, he may, in accordance with rules under section 103 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (6) above shall apply with such exceptions and modifications as may be prescribed.
(12) The prosecuting authority may not exercise the power mentioned in subsection (8)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.
(13) If, before the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, he may direct that, for the purposes of section 134 of this Act, the accused is to be deemed to have been tried by court-martial for the offence charged.
(14) If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (13) above.
(1) The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.
(2) An officer shall not be appointed as a prosecuting officer unless he is—
(a) a person who has a general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.”
15 After section 83 of the Air Force Act 1955 there shall be inserted the following sections—
(1) Her Majesty may appoint a qualified officer belonging to Her air forces to be the prosecuting authority for the Royal Air Force; and in this Act “the prosecuting authority” means the officer so appointed.
(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is—
(a) a person who has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland of at least ten years' standing; or
(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least ten years' standing.
(1) This section applies where a case has been referred to the prosecuting authority.
(2) If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall—
(a) if the accused is an officer or warrant officer, refer the case to the appropriate superior authority;
(b) if the accused is a non-commissioned officer or airman, refer the case to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to record a finding that the preliminary charge has been proved and award punishment accordingly.
(3) In subsection (2) above “the preliminary charge” means the charge for which punishment would have been awarded had the accused not elected court-martial trial.
(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall—
(a) determine any charge to be preferred and (subject to subsection (5) below) whether any such charge is to be tried by general court-martial or district court-martial; and
(b) prefer any charge so determined by him.
(5) The prosecuting authority shall not determine that a charge against an officer be tried by district court-martial.
(6) The prosecuting authority shall, in accordance with rules under section 103 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred and the description of court-martial by which that charge is to be tried; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.
(7) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
(8) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 103 of this Act—
(a) amend, or substitute another charge or charges for, any charge preferred;
(b) prefer an additional charge, or additional charges, against the accused;
(c) discontinue proceedings on any charge.
(9) The powers mentioned in subsection (8)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.
(10) The prosecuting authority may not exercise any power mentioned in subsection (8)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.
(11) If, before the commencement of the trial of a charge against the accused (“the original charge”), the prosecuting authority exercises the power mentioned in subsection (8)(b) above, he may, in accordance with rules under section 103 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (6) above shall apply with such exceptions and modifications as may be prescribed.
(12) The prosecuting authority may not exercise the power mentioned in subsection (8)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.
(13) If, before the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, he may direct that, for the purposes of section 134 of this Act, the accused is to be deemed to have been tried by court-martial for the offence charged.
(14) If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (13) above.
(1) The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.
(2) An officer shall not be appointed as a prosecuting officer unless he is—
(a) a person who has a general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.”
16 After section 52G of the Naval Discipline Act 1957 there shall be inserted the following sections—
(1) Her Majesty may appoint a qualified officer of Her naval forces to be the prosecuting authority for the Royal Navy; and in this Act “the prosecuting authority” means the officer so appointed.
(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is—
(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;.
(b) an advocate or solicitor in Scotland of at least five years' standing; or
(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least five years' standing.
(1) This section applies where a case has been referred to the prosecuting authority.
(2) If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall refer the case to the commanding officer of the accused for the preliminary charge to be tried summarily.
(3) In subsection (2) above “the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial.
(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and prefer any such charge.
(5) The prosecuting authority shall, in accordance with rules under section 58 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.
(6) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
(7) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act—
(a) amend, or substitute another charge or charges for, any charge preferred;
(b) prefer an additional charge, or additional charges, against the accused;
(c) discontinue proceedings on any charge.
(8) The powers mentioned in subsection (7)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.
(9) The prosecuting authority may not exercise any power mentioned in subsection (7)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.
(10) If, before the commencement of the trial of a charge against the accused (“the original charge”), the prosecuting authority exercises the power mentioned in subsection (7)(b) above, he may, in accordance with rules under section 58 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (5) above shall apply with such exceptions and modifications as may be prescribed.
(11) The prosecuting authority may not exercise the power mentioned in subsection (7)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.
(12) If, before the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, he may direct that the accused shall not be liable to be tried summarily or by court-martial for the offence charged.
(13) If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (12) above.
(1) The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.
(2) An officer shall not be appointed as a prosecuting officer unless he is—
(a) a person who has a general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland; or
(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.”
17 The Army Act 1955 shall be amended as follows.
18 Section 84 shall cease to have effect.
19 After section 84 there shall be inserted the following sections—
In this Act—
“court administration officer” means an officer (or other person) appointed by the Defence Council to convene general and district courts-martial and perform such other functions as may be prescribed; and
“the court administration officer”, in relation to a court-martial, means the court administration officer who convened the court-martial and includes his successor or any person for the time being exercising his or his successor’s functions.
(1) In this Act “the judge advocate”, in relation to a court-martial, means the judge advocate appointed by or on behalf of the Judge Advocate General to be a member of the court-martial.
(2) No person shall be appointed as the judge advocate unless he is—
(a) a person who has a five year general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;
(b) an advocate in Scotland of at least five years' standing or a solicitor who has had a right of audience in the Court of Session or the High Court of Justiciary for at least five years; or
(c) a member of the Bar of Northern Ireland of at least five years' standing.
(3) Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.
(4) Any directions given by the judge advocate shall be binding on the court.
(1) On being notified by the prosecuting authority of the charge preferred and the description of court-martial by which the charge is to be tried, a court administration officer shall by order convene a court-martial of that description.
(2) The order convening the court-martial shall specify—
(a) the date, time and place at which the court-martial is to sit;
(b) the officers who are to be members of the court-martial;
(c) which of those officers is to be president of the court-martial;
(d) any other officers appointed for the purpose of filling vacancies,
and shall state that a judge advocate appointed by or on behalf of the Judge Advocate General is to be a member of the court-martial.
(3) At any time before the commencement of the trial, the court administration officer may, in accordance with rules under section 103 of this Act, amend or withdraw the order convening the court-martial.
(4) The following shall not be eligible to be members of a court-martial for the trial of a charge—
(a) the court administration officer;
(b) an officer who at any time between the date on which the preliminary charge was reported to the commanding officer of the accused and the date of the trial has been the commanding officer of the accused;
(c) the higher authority to whom the preliminary charge against the accused was referred;
(d) any other officer who has investigated the subject matter of the charge against the accused;
(e) any other officer who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused.
(5) In subsection (4) above “the preliminary charge” means the charge referred to higher authority by the commanding officer of the accused.
(1) A general court-martial shall consist of the president, not less than four other military officers and the judge advocate.
(2) A district court-martial shall consist of the president, not less than two other military officers and the judge advocate.
(3) An officer shall not be appointed a member of a general court-martial unless he has held a commission in any of Her Majesty’s naval, military or air forces for a period of not less than three years or for periods amounting in the aggregate to not less than three years.
(4) An officer shall not be appointed a member of a district court-martial unless he has held a commission in any of Her Majesty’s naval, military or air forces for a period of not less than two years or for periods amounting in the aggregate to not less than two years.
(5) Not less than four of the members of a general court-martial shall be of a rank not below that of captain.
(6) A general court-martial for the trial of an officer above the rank of captain shall not include any member below the rank of captain.
(7) The president of a general or district court-martial shall not be below the rank of field officer unless in the opinion of the court administration officer a field officer having suitable qualifications is not, with due regard to the public service, available; and in any event the president of such a court-martial shall not be below the rank of captain.
(8) If, in the opinion of the court administration officer, the necessary number of military officers having suitable qualifications is not, with due regard to the public service, available, he may appoint as any member of the court (but not as its president) any naval or air-force officer of corresponding rank to that required for a military officer.
(9) In this section—
“air-force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;
“military officer” means an officer belonging to Her Majesty’s military forces and subject to military law; and
“naval officer” means an officer belonging to Her Majesty’s naval forces and subject to the [1957 c. 53.] Naval Discipline Act 1957.”
20 Section 85(3) shall cease to have effect.
21 Sections 86 to 90 shall cease to have effect.
22 (1) Section 91 (place for sitting of court-martial and adjournment to other places) shall be amended as follows.
(2) In subsection (1)—
(a) for the words “Her Majesty’s dominions” there shall be substituted the words “the United Kingdom”; and
(b) the words from “and the convening officer” to the end shall cease to have effect.
(3) In subsection (2), for the words from “shall” to “direction” there shall be substituted the word “may”.
23 (1) Section 92 (challenges by accused to members of court-martial) shall be amended as follows.
(2) In subsection (1), for the word “officer” there shall be substituted the word “member”.
(3) In subsection (2)—
(a) for the word “they” there shall be substituted the words “the officers appointed members”; and
(b) for the words “those officers” there shall be substituted the words “the members”.
(4) In subsection (3)—
(a) for the word “officer” there shall be substituted the word “member”; and
(b) for the words from “considered” to the end there shall be substituted the words “determined by the judge advocate”.
(5) In subsection (4)—
(a) for the words from “objection” to “it” there shall be substituted the words “an objection to the president is allowed”; and
(b) for the word “convening” there shall be substituted the words “court administration”.
(6) In subsection (5)—
(a) for the words from “objection” to “it” there shall be substituted the words “an objection to any other officer appointed a member of the court is allowed”;
(b) for the word “member” in the second place it appears there shall be substituted the word “officer”; and
(c) for the word “members” in the second place it appears there shall be substituted the word “officers”.
(7) After subsection (5) there shall be added the following subsection—
“(6) If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Judge Advocate General.”