Office of Public Sector Information
(2) In relation to a review before the announcement of the court-martial’s finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate.
(3) In section 75F(2), after paragraph (d) there shall be inserted— “; or
(e) the accused’s case has been adjourned for inquiries or a report and it appears to the judicial officer that it would be impracticable to complete the inquiries or make the report without keeping the accused in air-force custody.”
(4) Section 75F(3)(d) does not apply in the case of an accused who is awaiting sentence.
(5) An order under section 75F(2) does not authorise the keeping of the accused in air-force custody after he is sentenced by the court-martial.
(6) Subsection (1) above shall cease to apply (but without prejudice to any order already made by virtue of that subsection) if the court-martial is dissolved.”
(3) After section 47H of the 1957 Act there is inserted—
(1) Where the accused is kept in naval custody under an order under section 47G(2) of this Act at any time after the commencement of his trial by court-martial, section 47H of this Act (and section 47G as applied by that section) shall apply with the following modifications.
(2) In relation to a review before the announcement of the court-martial’s finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate.
(3) In section 47G(2), after paragraph (d) there shall be inserted— “; or
(e) the accused’s case has been adjourned for inquiries or a report and it appears to the judicial officer that it would be impracticable to complete the inquiries or make the report without keeping the accused in naval custody.”
(4) Section 47G(3)(d) does not apply in the case of an accused who is awaiting sentence.
(5) An order under section 47G(2) does not authorise the keeping of the accused in naval custody after he is sentenced by the court-martial.
(6) Subsection (1) above shall cease to apply (but without prejudice to any order already made by virtue of that subsection) if the court-martial is dissolved.”
(1) After section 75H of the [1955 c. 18.] Army Act 1955 there is inserted—
(1) This section applies where, at a hearing under section 75F(1) of this Act or on a review under section 75G(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in military custody.
(2) Where this section applies, the accused—
(a) subject to paragraph (b) below, shall be released from military custody forthwith, but
(b) if he is subject to military law only by virtue of section 131 or 205(1)(ea), (eb), (g) or (h) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.
(3) A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.
(4) A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”
(2) After section 75H of the [1955 c. 19.] Air Force Act 1955 there is inserted—
(1) This section applies where, at a hearing under section 75F(1) of this Act or on a review under section 75G(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in air-force custody.
(2) Where this section applies, the accused—
(a) subject to paragraph (b) below, shall be released from air-force custody forthwith, but
(b) if he is subject to air-force law only by virtue of section 131 or 205(1)(ff), (h) or (i) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.
(3) A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.
(4) A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”
(3) After section 47J of the 1957 Act there is inserted—
(1) This section applies where, at a hearing under section 47G(1) of this Act or on a review under section 47H(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in naval custody.
(2) Where this section applies, the accused—
(a) subject to paragraph (b) below, shall be released from naval custody forthwith, but
(b) if he is a person to whom section 51 of this Act applies or is subject to this Act by virtue of section 111(3) or (5) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.
(3) A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.
(4) A person guilty of an offence under this section shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.
(5) Any such offence shall be treated as if it were an offence under Part I of this Act.”
(1) After section 75J of the [1955 c. 18.] Army Act 1955 there is inserted—
(1) Except where subsection (3) below applies, the commanding officer of a person subject to military law (“the accused”) who—
(a) has been charged with, or is awaiting sentence for, an offence against any provision of this Part of this Act, and
(b) is not in military custody,
may, if satisfied that taking the accused into military custody is justified, give orders for his arrest.
(2) Subject to subsection (4) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial’s finding on the charge or every charge against the accused.
(3) Where this subsection applies, the judge advocate, if satisfied that taking the accused into military custody is justified, may direct the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.
(4) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.
(5) For the purposes of this section, taking the accused into military custody is justified if there are substantial grounds for believing that, if not taken into military custody, he would—
(a) fail to attend any hearing in the proceedings against him,
(b) commit an offence,
(c) injure himself, or
(d) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
(6) Taking the accused into military custody is also justified for the purposes of this section if—
(a) the accused is subject to military law only by virtue of section 131 of this Act, and
(b) he has failed to attend any hearing in the proceedings against him.
(7) A person arrested under subsection (1) above, if kept in military custody—
(a) shall be treated as being in military custody under an order under section 75F(2) of this Act, and
(b) shall be brought as soon as practicable before a judicial officer to be dealt with as on a review under section 75G(1) of this Act.
(8) A person arrested under subsection (3) above—
(a) shall be treated as being in military custody under an order under section 75F(2) of this Act, and
(b) shall be brought as soon as practicable before the judge advocate on whose direction the arrest was made (unless already before him), and shall be dealt with by him as on a review under section 75G(1) of this Act.”
(2) After section 75J of the [1955 c. 19.] Air Force Act 1955 there is inserted—
(1) Except where subsection (3) below applies, the commanding officer of a person subject to air-force law (“the accused”) who—
(a) has been charged with, or is awaiting sentence for, an offence against any provision of this Part of this Act, and
(b) is not in air-force custody,
may, if satisfied that taking the accused into air-force custody is justified, give orders for his arrest.
(2) Subject to subsection (4) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial’s finding on the charge or every charge against the accused.
(3) Where this subsection applies, the judge advocate, if satisfied that taking the accused into air-force custody is justified, may direct the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.
(4) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.
(5) For the purposes of this section, taking the accused into air-force custody is justified if there are substantial grounds for believing that, if not taken into air-force custody, he would—
(a) fail to attend any hearing in the proceedings against him,
(b) commit an offence,
(c) injure himself, or
(d) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
(6) Taking the accused into air-force custody is also justified for the purposes of this section if—
(a) the accused is subject to air-force law only by virtue of section 131 of this Act, and
(b) he has failed to attend any hearing in the proceedings against him.
(7) A person arrested under subsection (1) above, if kept in air-force custody—
(a) shall be treated as being in air-force custody under an order under section 75F(2) of this Act, and
(b) shall be brought as soon as practicable before a judicial officer to be dealt with as on a review under section 75G(1) of this Act.
(8) A person arrested under subsection (3) above—
(a) shall be treated as being in air-force custody under an order under section 75F(2) of this Act, and
(b) shall be brought as soon as practicable before the judge advocate on whose direction the arrest was made (unless already before him), and shall be dealt with by him as on a review under section 75G(1) of this Act.”
(3) After section 47K of the 1957 Act there is inserted—
(1) Except where subsection (3) below applies, the commanding officer of a person subject to this Act (“the accused”) who—
(a) has been charged with, or is awaiting sentence for, an offence under any provision of Part I of this Act, and
(b) is not in naval custody,
may, if satisfied that taking the accused into naval custody is justified, give orders for his arrest.
(2) Subject to subsection (4) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial’s finding on the charge or every charge against the accused.
(3) Where this subsection applies, the judge advocate, if satisfied that taking the accused into naval custody is justified, may direct the arrest of the accused; and any person with power to arrest the accused for an offence under Part I of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.
(4) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.
(5) For the purposes of this section, taking the accused into naval custody is justified if there are substantial grounds for believing that, if not taken into naval custody, he would—
(a) fail to attend any hearing in the proceedings against him,
(b) commit an offence,
(c) injure himself, or
(d) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
(6) Taking the accused into naval custody is also justified for the purposes of this section if—
(a) the accused is a person to whom section 51 of this Act applies, and
(b) he has failed to attend any hearing in the proceedings against him.
(7) A person arrested under subsection (1) above, if kept in naval custody—
(a) shall be treated as being in naval custody under an order under section 47G(2) of this Act, and
(b) shall be brought as soon as practicable before a judicial officer to be dealt with as on a review under section 47H(1) of this Act.
(8) A person arrested under subsection (3) above—
(a) shall be treated as being in naval custody under an order under section 47G(2) of this Act, and
(b) shall be brought as soon as practicable before the judge advocate on whose direction the arrest was made (unless already before him), and shall be dealt with by him as on a review under section 47H(1) of this Act.”
(1) After section 75K of each of the 1955 Acts there is inserted—
(1) Judicial officers shall be appointed for the purposes of this Act by the Judge Advocate General.
(2) No person shall be appointed under this section unless—
(a) he is qualified under section 84B(2) of this Act for appointment as the judge advocate in relation to a court-martial, or
(b) he has, and has had for at least five years, in any Commonwealth country or any colony rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.”
(2) After section 47L of the 1957 Act there is inserted—
(1) Judicial officers shall be appointed for the purposes of this Act by the Chief Naval Judge Advocate.
(2) No person shall be appointed under this section unless—
(a) he is qualified under section 53B(2) of this Act for appointment as the judge advocate in relation to a court-martial, or
(b) he has, and has had for at least five years, in any Commonwealth country or any colony rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.”
(1) After section 75L of each of the 1955 Acts there is inserted—
(1) The Secretary of State may make rules with respect to proceedings—
(a) on an application under section 75C of this Act;
(b) under section 75F(1) of this Act;
(c) on a review under section 75G(1) of this Act.
(2) Rules under this section may in particular make provision with respect to—
(a) arrangements preliminary to the proceedings;
(b) the representation of the person to whom the proceedings relate;
(c) the admissibility of evidence;
(d) procuring the attendance of witnesses;
(e) the immunities and privileges of witnesses;
(f) the administration of oaths;
(g) circumstances in which a review under section 75G(1) of this Act may be carried out without a hearing;
(h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 75C(2)(b), 75F(1) or 75K(7)(b) or (8)(b) of this Act for a person to be brought before a judicial officer or judge advocate;
(i) the appointment of persons to discharge administrative functions under the rules.
(3) Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”
(2) After section 47M of the 1957 Act there is inserted—
(1) The Secretary of State may make rules with respect to proceedings—
(a) on an application under section 47D of this Act;
(b) under section 47G(1) of this Act;
(c) on a review under section 47H(1) of this Act.
(2) Rules under this section may in particular make provision with respect to—
(a) arrangements preliminary to the proceedings;
(b) the representation of the person to whom the proceedings relate;
(c) the admissibility of evidence;
(d) procuring the attendance of witnesses;
(e) the immunities and privileges of witnesses;
(f) the administration of oaths;
(g) circumstances in which a review under section 47H(1) of this Act may be carried out without a hearing;
(h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 47D(2)(b), 47G(1) or 47L(7)(b) or (8)(b) of this Act for a person to be brought before a judicial officer or judge advocate;
(i) the appointment of persons to discharge administrative functions under the rules.
(3) Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”
(1) In section 187 of the [1955 c. 18.] Army Act 1955 (civil court proceedings for illegal absence from army)—
(a) in subsection (2) for the words from “commit” to the end, and
(b) in subsection (3) for “commit him as aforesaid”,
there is substituted “, where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into military custody.”
(2) In section 187 of the [1955 c. 19.] Air Force Act 1955 (civil court proceedings for illegal absence from air force)—
(a) in subsection (2) for the words from “commit” to the end, and
(b) in subsection (3) for “commit him as aforesaid”,
there is substituted “, where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into air-force custody.”
(3) In section 109 of the 1957 Act (civil court proceedings for illegal absence from navy)—
(a) for subsection (1)(b) there is substituted—
“(b) where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into naval custody.”,
(b) subsection (2) is omitted, and
(c) in subsection (3)(a) for “commit him as provided by subsection (1) of this section” there is substituted “, where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into naval custody”.
(4) In Schedule 2 to the [1996 c. 14.] Reserve Forces Act 1996 (deserters and absentees without leave from reserve fores)—
(a) for paragraph 4(2)(b) there is substituted—
“(b) where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into such custody.”, and
(b) in paragraph 5(3) for “commit him as mentioned in paragraph 4(2)(b)” there is substituted “, where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into such custody”.
Schedule 1 to this Act (which makes further amendments of the 1955 Acts and the 1957 Act in relation to custody) shall have effect.
(1) After section 76A of the [1955 c. 18.] Army Act 1955 there is inserted—
(1) Before dealing summarily with a charge, the commanding officer or appropriate superior authority shall afford the accused the opportunity of electing court-martial trial in relation to that charge.
(2) Where in accordance with regulations under section 83 of this Act two or more charges are together to be dealt with summarily, any election for court-martial trial must relate to all the charges concerned.
(3) If the accused elects court-martial trial and does not withdraw his election with leave, the commanding officer or appropriate superior authority shall refer to higher authority the charge to which the election relates, with a view to the trial of the accused by court-martial.
(4) If a charge has been referred to higher authority as a result of an election for court-martial trial and that election is withdrawn with leave, the higher authority shall—
(a) if the accused is an officer or warrant officer, refer the charge back to the appropriate superior authority;
(b) if the accused is a non-commissioned officer or soldier, refer the charge back to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to deal summarily with the charge.
(5) Subsection (1) above does not enable the accused to make a further election for court-martial trial in relation to a charge which has been referred back to the appropriate superior authority or commanding officer under subsection (4) above.
(6) Where under section 76B(3) of this Act a charge is amended or one charge is substituted for another, subsection (1) above applies in relation to the amended or substituted charge.”
(2) After section 76A of the [1955 c. 19.] Air Force Act 1955 there is inserted—
(1) Before dealing summarily with a charge, the commanding officer or appropriate superior authority shall afford the accused the opportunity of electing court-martial trial in relation to that charge.
(2) Where in accordance with regulations under section 83 of this Act two or more charges are together to be dealt with summarily, any election for court-martial trial must relate to all the charges concerned.
(3) If the accused elects court-martial trial and does not withdraw his election with leave, the commanding officer or appropriate superior authority shall refer to higher authority the charge or charges to which the election relates, with a view to the trial of the accused by court-martial.
(4) If a charge has been referred to higher authority as a result of an election for court-martial trial and that election is withdrawn with leave, the higher authority shall—
(a) if the accused is an officer or warrant officer, refer the charge back to the appropriate superior authority;
(b) if the accused is a non-commissioned officer or airman, refer the charge back to the commanding officer of the accused,
for the appropriate superior authority or commanding officer to deal summarily with the charge.
(5) Subsection (1) above does not enable the accused to make a further election for court-martial trial in relation to a charge which has been referred back to the appropriate superior authority or commanding officer under subsection (4) above.
(6) Where under section 76B(3) of this Act a charge is amended or one charge is substituted for another, subsection (1) above applies in relation to the amended or substituted charge.”
(3) In section 76B of each of the 1955 Acts (summary dealings)—
(a) subsections (5), (6) and (8) are omitted,
(b) in subsection (7), for the words from the beginning to “authority” there is substituted “If the commanding officer or appropriate superior authority determines that the charge has been proved, he”, and
(c) in subsection (10), after “76A” there is inserted “or 76AA”.
(4) In section 52D of the 1957 Act (summary trial), after subsection (2) there is inserted—
“(2A) Where in accordance with regulations under section 52F of this Act two or more charges are together to be tried summarily, any election for court-martial trial must relate to all the charges concerned.”
(5) In subsection (3) of that section for “so elects” there is substituted “elects court-martial trial”.
(1) After section 85 of each of the 1955 Acts there is inserted—
(1) Where a court-martial tries a person in pursuance of an election for court-martial trial, the court shall not award any punishment which could not have been awarded by the commanding officer or appropriate superior authority who would have dealt summarily with the preliminary charge if the election had not been made.
(2) In subsection (1) above “the preliminary charge” means the charge which would have been dealt with summarily had the accused not elected court-martial trial.
(3) For the purposes of this section a court-martial is not to be regarded as trying a person in pursuance of an election for court-martial trial if, since the election was made, the prosecuting authority has referred the charge back to the commanding officer under section 83BB of this Act.”
Armed Forces Discipline Act 2000