The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

Charges preferred by prosecuting authority: allocation for Court Martial trial

44.—(1) A charge within paragraph (3) or (4) is to be regarded for the purposes of Part 5 of AFA 2006 as allocated for Court Martial trial.

(2) Paragraph (1) has effect subject to any provision of that Part under which, at any time after commencement, the charge ceases to be allocated for Court Martial trial.

(3) A charge is within this paragraph if—

(a) it was preferred or substituted by the prosecuting authority under section 83B(4) or (8) of AA 1955 or AFA 1955 or section 52I(4) or (7) of NDA 1957; and

(b) it is current at commencement.

(4) A charge is within this paragraph if—

(a) the condition in sub-paragraph (a) of article 52(3) (preferment or substitution of charge under the Standing Civilian Courts Order 1997(1)) is satisfied in relation to it;

(b) the condition in any of sub-paragraphs (b) to (d) of that paragraph (circumstances in which charge to be tried by Standing Civilian Court rather than court-martial) is not satisfied in relation to it; and

(c) it is current at commencement.

(5) For the purposes of this article a charge is “current at commencement” if, at commencement—

(a) the accused has not already been convicted or acquitted by court-martial of the offence charged;

(b) the charge has not been otherwise disposed of;

(c) proceedings on it have not been stayed;

(d) the case has not been referred to the accused’s commanding officer, or the appropriate superior authority, under section 83B(2) of AA 1955 or AFA 1955 or section 52I(2) of NDA 1957;

(e) proceedings on the charge have not been discontinued under section 83B(8) of AA 1955 or AFA 1955 or section 52I(7) of NDA 1957, and no other charge has been substituted for it;

(f) the charge has not been tried by court-martial without a finding on it being recorded because it was charged as an alternative to another charge which was found proved; and

(g) the time limit for court-martial trial has not expired.

(6) For the purposes of paragraph (5)(b) a charge has been “otherwise disposed of” if, under either of the following, the person who was charged could not be tried by the Court Martial in respect of the offence to which the charge related—

(a) article 25 of this Order (double jeopardy);

(b) Chapter 3 of Part 2 of AFA 2006 (double jeopardy) as modified by this Order.

(1)

S.I. 1997/172.