Statutory Instrument 1997 No. 169
The Courts-Martial (Army) Rules 1997 - continued

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SCHEDULE 3
Rule 24


OATHS AND AFFIRMATIONS




PART I

MANNER OF ADMINISTERING OATHS AND AFFIRMATIONS

     1. An oath may be administered by the person swearing the oath holding the New Testament, or if a Jew the Old Testament, in his uplifted hand and saying, or repeating after the person administering it, the oath provided in this Schedule for that category of person.

     2. A Scottish oath may be administered by the person swearing the oath with uplifted hand and saying, or repeating after the person administering it, the Scottish oath provided in this Schedule for that category of person.

     3. An oath may be administered in such manner as the person taking the oath declares to be binding on his conscience in accordance with his religious beliefs where the oath provided in this Schedule for that category of person is modified in accordance with those religious beliefs.

     4. A person under 18 making a promise or a person making a solemn affirmation instead of taking an oath shall say or repeat after the person administering the promise or affirmation provided in this Schedule for that category of person.



PART II

FORMS OF OATH

President and members other than the judge advocate
     5. I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to law without partiality, favour or affection; and I do further swear that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial, unless thereunto required in due course of law.

Persons under instruction
     6. I swear by Almighty God that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial unless thereunto required in due course of law.

Interpreter
     7. I swear by Almighty God that I will well and faithfully interpret and make true explanation of all such matters and things as shall be required of me according to the best of my skill and understanding.

Witness
     8. I swear by Almighty God that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.

Form for a person under 18
     9. I promise before Almighty God that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.



PART III

FORM OF SCOTTISH OATHS

     10. The form of Scottish oath shall in each case be the same as the form of oath set out above except that for the words "I swear by Almighty God" there shall be substituted the words "I swear by Almighty God and as I shall answer to God at the Great Day of Judgement".



PART IV

FORM OF SOLEMN AFFIRMATIONS

     11. The form of affirmation shall in each case be the same as the form of oath set out above except that for the words "I swear by Almighty God" there shall be substituted the words "I solemnly, sincerely, and truly declare and affirm".



SCHEDULE 4
Rule 25


HEARING FOR DIRECTIONS


The matters which may be addressed at a hearing for directions shall include - 

     1. the issues in the case;

     2. issues, if any, as to the mental or medical condition of any defendant or witness;

     3. the number of witnesses whose evidence will be placed before the court either orally or in writing;

     4. the defence witnesses in 3. above whose statements have been served and whose evidence the prosecution will agree and accept in writing;

     5. any prosecution witnesses whom the defence require to attend at the trial;

     6. any additional witnesses who may be called by the prosecution and the evidence that they are expected to give;

     7. facts which are to be admitted and which can be reduced into writing in accordance with section 10(2)(b) Criminal Justice Act 1967[12], within such time as may be directed at the hearing, and of any witness whose attendance will not be required at the trial;

     8. any exhibits and schedules which are to be admitted;

     9. the order and pagination of the papers to be used by the prosecution at the trial and the order in which the prosecution witnesses are likely to be called;

     10. any alibi which should already have been disclosed in accordance with section 11 Criminal Justice Act 1967;

     11. any point of law which it is anticipated will arise at trial;

     12. any question as to the admissibility of evidence which appears on the face of the papers, and any authority on which the party intends to rely;

     13. any application to be made for evidence to be given through live television link;

     14. any application to submit pre-recorded video interviews with a child witness as evidence in chief;

     15. any application for screens, for use by witnesses seeking a visual break between themselves and any relevant parties;

     16. whether any video, tape recorder or other technical equipment will be required during a trial;

     17. where a tape recorded interview has taken place, of any dispute or agreement as to the accuracy of any transcript or summary;

     18. any other significant matter which might affect the proper and convenient trial of the case, and whether any additional work needs to be done by the parties;

     19. the estimated length of the trial, to be agreed more precisely taking account of any views expressed by the judge advocate and the other parties;

     20. witness availability and the approximate length of witness evidence;

     21. availability of advocate;

     22. whether there is a need for any further directions.



SCHEDULE 5
Rule 82


GUIDANCE FOR PETITIONERS


     1. The petition should be settled with sufficient particularity to enable the reviewing authority to identify clearly the matters relied upon, and set out in such manner as to be reasonably easily understood.

     2. The petition should not contain grounds of appeal unless it is considered that such grounds are properly arguable.

     3. The petition should not contain any factual inaccuracy.

     4. Any allegation of fact in the petition should be based on evidence identified in the petition.

     5. The petition should not contain a suggestion that a person (other than the accused) is guilty of impropriety, crime, fraud or misconduct unless such an allegation goes to a matter in issue which is material to the accused's case and is supported by evidence identified in the petition.

     6. Any proposition of law should be supported by references to any relevant authority, and all such authorities must be cited in the petition with sufficient particularity to identify them.



SCHEDULE 6
Rule 84


CIVILIANS




PART I

MODIFICATIONS FOR CIVILIANS

Rule Modification
2 For the definition of "commanding officer" the substitution of - 

    " "commanding officer", in relation to an accused, means such officer as may be determined by or under regulations of the Defence Council made under section 209(3)(f) of the Act;".

The addition, in the appropriate places, of the following definitions - 

    " "period of parental recognisance" means the period specified in an order made against a parent or guardian of the accused under paragraph 14(1) of Schedule 5A to the Act or of Schedule 5A to the Air Force Act 1955 or of Schedule 4A to the Naval Discipline Act 1957;

"service parent or guardian" shall be construed in accordance with paragraph 2(2) of Schedule 5A to the Act;".
4(1) The omission of sub-paragraph (g).
7(1) In sub-paragraph (a), the omission of the words "service number and rank".
  The omission of sub-paragraph (b).
15 For paragraph (2) the substitution of - 

    " (2) If the accused so requests, the commanding officer of the accused may appoint a defending officer to assist the accused to prepare and conduct his defence.".
76 In sub-paragraph (a), the omission of the words "and rank".

The omission of sub-paragraphs (b) and (g).

For sub-paragraph (h) the substitution of - 

    " (h) details of the employment of the accused.".


PART II

ADDITIONAL RULES FOR CIVILIANS

Prosecution of civilians
     1.  - (1) This rule applies where an accused has elected court-martial trial under article 16 of the Standing Civilian Courts Order 1997[13], or is to be treated under article 17 of that Order as if he had elected court-martial trial.

    (2) On receipt of notice of the election, the prosecutor shall determine whether the charge is to be tried by general court-martial or district court-martial.

    (3) Subject to paragraph (4) below, an accused shall be treated for the purposes of these Rules as if had been notified by his commanding officer that he is to be tried by court-martial under rule 11 above.

    (4) The prosecutor shall serve on the accused and the court administration officer a charge sheet appropriate for the court-martial trial.

Accused's parent or guardian
     2.  - (1) This rule applies where - 

    (a) an accused is under the age of 17 years, or

    (b) the offence with which the accused is charged is alleged to have been committed during a period of parental recognisance.

    (2) Where the prosecutor or the court ad Additional charges during trial
     48 .  - (1) If after the commencement of the trial the prosecutor intends to seek the leave of the court to prefer an additional     (3) Where the accused has not appointed a legal adviser, any parent or guardian of the accused may exercise on behalf of the accused the rights granted to the accused in rule 6(2) above and may represent the accused during the court-martial and any preliminary proceedings in such matter and to such extent as the judge advocate thinks fit.

    (4) The court administration officer shall issue a witness summons in accordance with rule 23 above in respect of any parent or guardian on whom a document has been served in accordance with paragraph (2) above to attend the court-martial.

    (5) Any parent or guardian of the accused may, if present - 



PART III

APPEALS FROM STANDING CIVILIAN COURTS

Forwarding an appeal to the prosecuting authority
     3.  - (1) When the higher authority receives a notice of appeal against conviction or sentence (or both) lodged under paragraph 18(3) of Schedule 3 to the Armed Forces Act 1976[14], he shall forward the notice to the prosecuting authority with a view to the appeal being heard by a court-martial.

    (2) On receipt of a notice under paragrph (1) above, the prosecutor shall determine whether the appeal is to be heard by general court-martial or district court-martial.

    (3) Subject to rules 4 to 6 below, these Rules shall be complied with as if the charge which is the subject of the appeal were a charge preferred against the accused under section 83B(4)[15] of the Act.

Charge sheet on appeal
     4.  - (1) Any alternative charge preferred against the accused for trial by the Standing Civilian Court on which no finding was made may be added to the charge sheet for trial by the court-martial.

    (2) The prosecutor may not amend or substitute another charge or charges for, or discontinue proceedings on, the charge which is the subject of the appeal.

Appeal against sentence alone
     5. Where the appeal in respect of a charge is against sentence alone, the court shall proceed after the commencement of the court-martial trial as if the accused had pleaded guilty to that charge.

Sentencing on appeal
     6.  - (1) Where the appeal in respect of a charge is against conviction alone and the court find the accused guilty of the charge, it shall pass as the sentence of the court-martial in respect of that charge the sentence passed for that offence by the Standing Civilian Court or any lesser sentence which it considers appropriate.

    (2) In any other case where, on appeal, the court-martial is required to pass sentence, it shall proceed to sentence the accused in accordance with these Rules subject to paragraphs (3) to (5) below.

    (3) The prosecutor shall, where practicable, in addition to the information listed in rule 76(2) above as modified by Part I of this Schedule, present to the court information concerning - 

    (a) any offences which the Standing Civilian Court took into consideration;

    (b) the result of any review of the findings or sentence of the Standing Civilian Court.

    (4) In addition to its power under rule 74 above, the court may take into consideration any offence which was taken into consideration by the Standing Civilian Court and as to the judge advocate seems proper.

    (5) The court shall award a separate sentence for each offence.

Appeal by parent or guardian of an accused
     7. Where a parent or guardian appeals against an order against him made by the Standing Civilian Court under paragraph 13 of Schedule 5A to the Act, and the accused in respect of whose conviction the order was made does not appeal against that conviction, the court adminstration officer shall issue a witness summons in respect of that accused to attend the court-martial.

Abandonment of appeal
     8.  - (1) An accused who has given notice of appeal to a court-martial against finding or sentence of a Standing Civilian Court may abandon the appeal or any part of it at any time before the commencement of the trial by court-martial by giving notice in writing to the court administration officer.

    (2) An accused who has given notice of appeal to a court-martial may not abandon the appeal or any part of it after the commencement of the trial by court-martial except with the leave of the court-martial.

    (3) Where an accused fails to appear before the court-martial at the appointed time or subsequently thereafter, the judge advocate, if he considers that there is no reasonable explanation for the failure to appear, may direct that the appeal be treated as abandoned.

    (4) An accused may not revive an appeal or any part of it which he has abandoned or which is treated as abandoned.



SCHEDULE 7
Rule 90


REVOCATIONS


Rules revoked Reference
The Rules of Procedure (Army) 1972 S.I. 1972/316
The Rules of Procedure (Army) (Amendment) Rules 1974 S.I. 1974/761
The Rules of Procedure (Army) (Amendment) Rules 1977 S.I. 1977/92
The Rules of Procedure (Army) (Amendment) Rules 1981 S.I. 1981/1220
The Rules of Procedure (Army) (Amendment) Rules 1982 S.I. 1982/369
The Rules of Procedure (Army) (Amendment) Rules 1983 S.I. 1983/719
The Rules of Procedure (Army) (Amendment) Rules 1984 S.I. 1984/1670
The Rules of Procedure (Army) (Amendment) Rules 1986 S.I. 1986/2126
The Rules of Procedure (Army) (Amendment) Rules 1989 S.I. 1989/2127
The Rules of Procedure (Army) (Amendment) Rules 1991 S.I. 1991/2787
The Rules of Procedure (Army) (Amendment) Rules 1996 S.I. 1996/1388
The Rules of Procedure (Army) (Amendment No. 2) Rules 1997| S.I. 1997/18

EXPLANATORY NOTE

(This note is not part of the Rules)


These Rules prescribe the procedure governing the prosecution and trial of offences at courts-martial under the Army Act 1955 (c.18). The Rules generally accord with procedures in the Crown Court. They replace and revoke the Rules of Procedure (Army) 1972 (S.I. 1972/316) and take account of changes in the law and procedure since then, giving effect in particular to the provisions of the Armed Forces Act 1996 (c.46).

The Rules regulate the functions of the prosecuting authority and the court administration officer. The Rules provide for the form and preferring of charges, the discontinuance of proceedings before trial and the procedure to be followed by the court administration officer when convening the court-martial.

The Rules provide for the first time for preliminary proceedings in the form of a hearing for directions, at which the judge advocate may make any necessary directions to secure the efficient trial of the case, and preparatory and pre-trial hearings at which the judge advocate may make rulings before the trial commences.

Specific provision is made for the court-martial to resolve disputed issues of fact other than the accused's guilt, where it is necessary to do so before deciding what sentence is to be passed.

Rules relating to the admission of evidence via closed circuit television link and of video recording of testimony from child witnesses are included.

A period of 28 days from the day sentence is announced is prescribed within which an accused may present a petition against finding or sentence or both to the reviewing authority, who is required to give reasons for his decision if such a petition is presented.

Notes:

 [12] Sections 9, 10 and 11 of the Criminal Justice Act 1967 are applied to proceedings before courts-martial (subject to the modifications prescribed by the Criminal Justice Act 1967 (Application to Courts-Martial) (Evidence) Regulations 1997 (S.I. 1997/173). back

[13] S.I. 1997/172. back

[14] 1976 c.52; Schedule 3 was amended by the Armed Forces Act 1996, section 5 and Schedule 1. back

[15] Section 83B was inserted by the Armed Forces Act 1996, section 5 and Schedule 1. back


ISBN 0 11 063876 X


 
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Prepared 20 March 1997