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

Charges reported to commanding officer: allocation for summary hearing

46.—(1) A charge within paragraph (3) is to be regarded for the purposes of Part 5 of AFA 2006 as allocated for summary hearing.

(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 summary hearing.

(3) A charge is within this paragraph if—

(a) it is a charge which—

(i) was reported to an officer under section 76(1) of AA 1955 or AFA 1955 or section 52B(1) of NDA 1957; or

(ii) was required to be dealt with as if it had been so reported (by reason of section 83BB(3) or (4) of AA 1955 or AFA 1955 or section 52II(3) or (4) of NDA 1957); or

(iii) was substituted under section 76(3) or 76B(3) of AA 1955 or AFA 1955 or section 52B(3) or 52D(4B) of NDA 1957;

(b) it is current at commencement; and

(c) it is not an excluded charge within the meaning of article 47.

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

(a) the charge has not been summarily dealt with or tried;

(b) the charge has not been dismissed under section 76(5)(a) of AA 1955 or AFA 1955 or section 52B(5)(a) of NDA 1957;

(c) further proceedings with respect to it have not been stayed under section 76(4) of AA 1955 or AFA 1955 or section 52B(4) of NDA 1957;

(d) no direction for dismissal or stay of further proceedings has been made in relation to it under section 76A(2) of AA 1955 or AFA 1955 or section 52C(2) of NDA 1957;

(e) no other charge has been substituted for it under section 76(3) or 76B(3) of AA 1955 or AFA 1955 or section 52B(3) or 52D(4B) of NDA 1957;

(f) the time limit for court-martial trial has not expired (see article 48); and

(g) if the case to which the charge relates has been referred to the prosecuting authority, the charge is not prevented by paragraph (5) or (6) from being current.

(5) The charge referred to in paragraph (4)(g) (“the original charge”) is prevented by this paragraph from being current if the prosecuting authority has preferred a charge (“the PA’s charge”) and—

(a) has not subsequently referred the case to the accused’s commanding officer or the appropriate superior authority under section 83B(2) or 83BB(2A) of AA 1955 or AFA 1955 or section 52I(2) or 52II(2A) of NDA 1957; and

(b) has not (either before or after preferring the PA’s charge) referred a part of the case to which the original charge relates to the accused’s commanding officer under section 83BB(2A) of AA 1955 or AFA 1955 or section 52II(2A) of NDA 1957.

(6) The charge referred to in paragraph (4)(g) is prevented by this paragraph from being current if the prosecuting authority has informed the accused’s commanding officer that the prosecuting authority has decided—

(a) not to prefer any charge; and

(b) (if there was no election for court-martial trial) not to refer the case, or any part of it to which the charge relates, back to the accused’s commanding officer under section 83BB(2A) of AA 1955 or AFA 1955 or section 52II(2A) of NDA 1957.

(7) For the purposes of paragraph (4)(a) the charge has been summarily dealt with or tried if—

(a) it has been dismissed within the meaning of section 76B(2) of AA 1955 or AFA 1955, or the accused has been acquitted of it under section 52D(6) of NDA 1957; or

(b) a finding that the charge has been proved has been recorded under section 76B(7) of AA 1955 or AFA 1955, or a finding of guilt in respect of it has been recorded under section 52D(7) of NDA 1957.