The Courts-Martial (Army) Rules 2007

JurisdictionUK Non-devolved
CitationSI 2007/3442
Year2007

2007 No. 3442

defence

The Courts-Martial (Army) Rules 2007

Made 6th December 2007

Laid before Parliament 10th December 2007

Coming into force 1st January 2008

The Secretary of State makes the following Rules in exercise of the powers conferred upon him by section 103 and section 209(3D) of the Army Act 19551, and sections 111 and 113 of, and paragraph 5 of Schedule 6 to, and sections 132 and 135 of, and paragraph 2(6) pf Schedule 7 to, the Criminal Justice Act 20032:

1 PRELIMINARY

PART 1

PRELIMINARY

S-1 Citation and commencement

Citation and commencement

1. These Rules may be cited as the Courts-Martial (Army) Rules 2007 and shall come into force on 1st January 2008.

S-2 Interpretation

Interpretation

2. In these Rules—

“the Act” means the Army Act 1955;

the 2003 Act” means the Criminal Justice Act 2003;

“the board” means those members of the court-martial other than the judge advocate;

“commanding officer”, in relation to an accused, means such officer having powers of command over that person as may be determined by or under regulations of the Defence Council made under section 82(1) of the Act;

“commencement of the trial” shall be construed in accordance with rule 60;

“formal preliminary examination” shall be construed in accordance with rule 6;

“the judge advocate”—

(i) 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;

(ii) in relation to a preliminary hearing, means the judge advocate appointed by or on behalf of the Judge Advocate General to conduct any such proceedings;

“legal representative” means a person appointed to represent an accused at a formal preliminary examination and at any proceedings before a court-martial, providing he is—

(i) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 19903;

(ii) an advocate or a solicitor in Scotland;

(iii) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland; or

(iv) a person having in any of the Channel Islands, the Isle of Man, a Commonwealth country or British overseas territory rights and duties similar to those of a barrister or solicitor in England and Wales, and subject to punishment or disability for breach of professional rules;

“live television link” means an arrangement by which a person (when not in the place where the hearing is being held) is able to see and hear, and to be seen and heard by, the court during a hearing (and for this purpose any impairment of eyesight or hearing is to be disregarded);

“preliminary charge” has the same meaning as in section 83B(3) of the Act;

“preliminary hearing” shall be construed in accordance with rule 36;

“the president of the board” shall be construed in accordance with rule 55;

“the prosecuting authority” means the prosecuting authority or any prosecuting officer or other person appearing on his behalf;

“prosecution papers” shall be construed in accordance with rule 11; and

“special finding” shall be construed in accordance with rule 77.

S-3 Service on an accused

Service on an accused

3.—(1) Unless the context otherwise requires, where under these Rules any document or notice is to be served on an accused by the court administration officer or the prosecuting authority, it may be served—

(a)

(a) by sending it to the commanding officer of the accused;

(b)

(b) by delivering it to the accused personally;

(c)

(c) by leaving it for the accused with a person at the accused’s usual place of abode; or

(d)

(d) by post in a letter addressed to the accused at his last known or usual place of abode.

(2) Where a document or notice is received by the commanding officer in accordance with paragraph (1)(a), he shall serve it on the accused as soon as is practicable.

2 PROSECUTION OF OFFENCES

PART 2

PROSECUTION OF OFFENCES

S-4 Referring a case to the prosecuting authority

Referring a case to the prosecuting authority

4.—(1) Where the higher authority refers a case in accordance with section 76A(1) of the Act, he shall forward to the prosecuting authority—

(a)

(a) all documents and any other materials forwarded to him by the commanding officer in accordance with regulations made by the Defence Council under section 83 of the Act;

(b)

(b) any other information in his possession which may be material to the prosecuting authority’s consideration of the institution of proceedings; and

(c)

(c) where the accused has elected trial by court-martial, notification of that fact.

S-5 Withdrawal of election in a multiple charge case

Withdrawal of election in a multiple charge case

5.—(1) Where—

(a)

(a) an election for court-martial trial relates to two or more preliminary charges; and

(b)

(b) that election is withdrawn with the leave of the prosecuting authority,

section 83B(2) of the Act shall have effect as if it required the prosecuting authority to refer back to the appropriate superior authority or, as the case may be, the commanding officer of the accused, each of the preliminary charges to be dealt with summarily.

S-6 Formal preliminary examination

Formal preliminary examination

6.—(1) Where a case in respect of an accused has been forwarded to the prosecuting authority but he has not preferred any charge, he may order an examination under this rule and such an examination shall in these Rules be referred to as a formal preliminary examination.

(2) The order for a formal preliminary examination shall—

(a)

(a) appoint the date, time and place at which the formal preliminary examination shall take place;

(b)

(b) state the nature of the allegations against the accused;

(c)

(c) list the witnesses whom the prosecuting authority seeks to examine orally; and

(d)

(d) list the witnesses whose written statements or other record of evidence are to be read out.

(3) The order shall be served on the accused and the court administration officer not less than 24 hours before the time appointed for the formal preliminary examination.

(4) On receipt of the order, the court administration officer—

(a)

(a) shall notify to attend the formal preliminary examination—

(i) the witnesses listed in the order whom the prosecuting authority requires to examine orally; and

(ii) such additional witnesses as the accused may request;

(b)

(b) may arrange for the attendance at the formal preliminary examination of a court recorder and interpreter.

S-7 Conduct of formal preliminary examination

Conduct of formal preliminary examination

7.—(1) Subject to paragraph (3), each witness whom the prosecuting authority seeks to examine orally shall be examined by him, after which the accused shall be entitled to cross-examine the witness.

(2) A signed written statement or other record of the evidence of each witness listed under rule 6(2)(d) shall be read out by the prosecuting authority, unless the accused consents to their inclusion in the record of the examination without being read out.

(3) If the case being investigated concerns behaviour of a violent, cruel or sexual nature and the relevant witness is a person under the age of 17, then—

(a)

(a) the prosecuting authority may read out any written statement made by or taken from the witness which would be admissible if given orally; and

(b)

(b) the accused may not cross-examine the witness in person.

(4) During the formal preliminary examination the prosecuting authority may notify any witness to attend the examination and give oral evidence.

(5) After paragraphs (1) and (2) have been complied with, the prosecuting authority shall explain to the accused—

(a)

(a) that he may give evidence if he so wishes, but he is not obliged to do so;

(b)

(b) that he may call witnesses on his behalf.

(6) Any witness for the accused (including the accused himself) may give evidence orally but shall not be subject to cross-examination, except that the prosecuting authority may ask a question where it is necessary to resolve an ambiguity or to enable the evidence to be recorded in a coherent form.

(7) Except where the witness is a person under the age of 14, any evidence given orally during the formal preliminary examination shall be given on oath, administered by the prosecuting authority.

(8) Any evidence given orally during the formal preliminary examination shall be recorded by the prosecuting authority or a court recorder.

(9) Where the evidence is recorded in writing, the record of his evidence shall be read back to the witness at the conclusion of his evidence, corrected where necessary and signed by him.

(10) A copy of any statement read out in accordance with paragraph (2) or (3) and the transcript of any shorthand note or mechanical record shall be included in the record of the examination.

S-8 Referring back in a multiple charge case before charges are preferred

Referring back in a multiple charge case before charges are preferred

8.—(1) Where—

(a)

(a) an election for court-martial trial relates to two or more preliminary charges; and

(b)

(b) the prosecuting authority considers that a charge or charges different from or additional to a preliminary charge should be preferred,

section 83BB(1) of the Act shall have effect as if it required the prosecuting authority to refer back to the commanding officer of the accused any additional preliminary charge as well as the charge or charges which he would otherwise be required to refer back under that section.

(2) In paragraph (1), the reference to any additional preliminary charge is to any preliminary charge which is different from the preliminary charge referred to in paragraph (1)(b).

S-9 Charge sheet

Charge sheet

9.—(1) A charge sheet shall be in the form specified in Schedule 1 and shall state—

(a)

(a) the name, service number and rank or rate of the accused;

(b)

(b) the name of the unit, if any, in which the accused is serving;

(c)

(c) particulars of how the accused is subject to military law or otherwise triable under the Act;

(d)

(d) any charge preferred against the accused...

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