The Armed Forces (Custody Proceedings) Rules 2009

PART 1 PRELIMINARY

Citation and commencement

1.  These Rules may be cited as the Armed Forces (Custody Proceedings) Rules 2009 and shall come into force on 31st October 2009.

Interpretation

2.—(1) In these Rules—

“the Act” means the Armed Forces Act 2006;

“civilian policeman” means a member of a UK police forces or a British overseas territory police force;

“custody” means service custody and shall be construed in accordance with sections 98 to 111;

“DX” means document exchange;

“the Director” means the Director of Service Prosecutions;

“hearing” means a hearing in connection with any proceedings;

“the judge advocate” means the Judge Advocate General or a judge advocate specified by him to conduct proceedings under these Rules;

“legal representative” shall be construed in accordance with rule 18;

“live link” has the meaning given in rule 16(3)(a);

“proceedings” shall be construed in accordance with section 112(1); and

“unit” means—

(a)

a naval ship or establishment;

(b)

any body of members of Her Majesty’s forces formed under the command of a person appointed to be the commanding officer of the body;

(c)

an air force station.

(2) References in these Rules to a person to whom proceedings relate are to—

(a) a person arrested under section 67;

(b) an accused within the meaning of sections 106 to 109;

(c) a person arrested under section 110(1) or 111(1); or

(d) a person remitted under section 171(1).

(3) Any reference in these Rules to a numbered section is to that section of the Act, unless otherwise stated.

PART 2 SERVICE OF DOCUMENTS

Interpretation of Part 2

3.—(1) References in this Part to a requirement that a document be served on a person include any requirement that the document be supplied to the person, however expressed.

(2) References in this Part to a person’s agreement to the service of a document in a particular way include his agreement that any document of a description specified by him may be served in that way.

Service on a person to whom proceedings relate

4.—(1) Where under these Rules any document is to be served on a person to whom proceedings relate, it may be served—

(a) on him personally;

(b) if he is subject to service law, by post in a letter addressed to him at his unit;

(c) if he is not subject to service law—

(i) by leaving it at his usual or last known place of abode; or

(ii) by post in a letter addressed to his usual or last known place of abode;

(d) by post in a letter addressed to his legal representative’s place of business; or

(e) by DX, fax, electronic mail or other electronic means to his legal representative, where his legal representative—

(i) has given a DX box number, fax number or electronic mail or other electronic means address; and

(ii) has not refused to accept service by that means.

(2) In this rule references to the person’s legal representative are to any person of whose name and address the court administration officer has been notified under rule 18(7).

Service on the court administration officer

5.  Where under these Rules any document is to be served on the court administration officer, it may be served—

(a) by post, DX, fax, electronic mail or other electronic means to any office of the Military Court Service; or

(b) on a member of that Service personally, with his agreement.

Service on the Director

6.  Where under these Rules any document is to be served on the Director, it may be served—

(a) by post, DX, fax, electronic mail or other electronic means to—

(i) the principal office of the Service Prosecuting Authority; or

(ii) with the agreement of a prosecuting officer, that Authority’s main office in Germany; or

(b) on a prosecuting officer personally, with his agreement.

Service on other individuals

7.  Where under these Rules any document is to be served on an individual other than a person to whom proceedings relate, the court administration officer or the Director, it may be served—

(a) on the individual personally;

(b) if he is subject to service law, by post in a letter addressed to him at his unit;

(c) if he is not subject to service law—

(i) by leaving it at his usual or last known place of abode; or

(ii) by post in a letter addressed to his usual or last known place of abode.

Service by another method

8.—(1) A judge advocate may direct that a document may be served by a method other than those mentioned in rules 4 to 7.

(2) A direction under this rule—

(a) must specify—

(i) the method to be used; and

(ii) the date by which the document must be served; and

(b) may specify the time on that date by which the document must be served.

(3) A judge advocate may treat a document as served if the addressee responds to it, even if it was not served in accordance with these Rules.

Service by commanding officer

9.  Where a document to be served on a person is sent or delivered to his commanding officer, his commanding officer must arrange for the document to be served on him personally as soon as is reasonably practicable.

Service by fax or electronic means

10.  Where a document is served by fax, electronic mail or other electronic means, the person serving it need not provide a paper copy as well.

Date of service

11.  Unless the contrary is shown, a document served on a person (otherwise than personally) shall be assumed to have been served—

(a) in the case of a document sent by post from the United Kingdom to an address within the United Kingdom, on the fifth day after the day on which it was despatched;

(b) in the case of a document sent by post—

(i) from the United Kingdom or Germany to an address within Germany, or

(ii) from Germany to an address within the United Kingdom,

on the tenth day after the day on which it was despatched;

(c) in the case of any other document sent by post, on the tenth day after the day on which it was despatched;

(d) in the case of a document served by DX, on the fifth day after the day on which it was left at the addressee’s DX box number or despatched;

(e) in the case of a document served by fax, electronic mail or other electronic means, on the day after it was transmitted; and

(f) in any case, on the day on which the addressee responds to it if that is earlier.

Proof of service

12.—(1) Where—

(a) under any of rules 4 to 7 or a direction under rule 8, a document may be served by a particular method, and

(b) a certificate is produced which—

(i) states that the document was so served, and

(ii) is signed by a person who purports to have so served the document,

the document shall be assumed to have been so served, unless the contrary is shown.

(2) Where a certificate is produced which—

(a) states that a document was despatched, left at a DX box number or transmitted on a particular day, and

(b) is signed by a person who purports to have despatched, left or transmitted the document,

for the purposes of rule 11 the document shall be assumed to have been despatched, left or transmitted on that day, unless the contrary is shown.

(3) This rule is subject to any provision requiring proof on oath.

PART 3 PROCEEDINGS: GENERAL

The court administration officer

13.  The court administration officer or a person acting on his behalf must exercise his functions subject to any direction given by a judge advocate.

Arranging a hearing

14.  Where the court administration officer receives notification under rule 24(1)(a), 25(1)(a) or 26(1)(a) or an application under rule 29(1) he shall, after consultation with the Judge Advocate General, determine the time and place of any hearing.

Notification of proceedings

15.  The court administration officer must serve notice of any time and place appointed by him for the commencement or resumption of any hearing on—

(a) each person to whom the proceedings relate;

(b) the legal representative (if any) of each such person;

(c) the commanding officer of each such person; and

(d) any such other person as the Judge Advocate General may direct.

Live links

16.—(1) Any person may (and, if in service custody, must) attend any proceedings under these Rules by live link, if a judge advocate so directs.

(2) A person who attends any proceedings by live link, and could give oral evidence in the proceedings if he were in the place where the proceedings are being held, may give evidence by live link.

(3) In these Rules—

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

(b) references to bringing a person before the judge advocate include bringing him to a place from which he can attend proceedings by live link.

(4) A direction under this rule may be given by any judge advocate.

(5) Where a direction is given under this rule in relation to a witness, the witness may not give evidence otherwise than by live link without the leave of the judge advocate.

(6) A judge advocate may give a direction under this rule, or give permission for the purposes of paragraph (5)—

(a) on an application by a party to the proceedings; or

(b) of his own motion.

Proceedings in absence of a person to whom the proceedings relate

17.  Proceedings may be held in the absence of any person to whom they relate, if the judge advocate so directs.

Legal representation

18.—(1) The person to whom the proceedings relate and the commanding officer shall each have the right to be legally represented at a hearing.

(2) The person to whom the proceedings relate may appoint a legal representative to act for him in these proceedings.

(3) The commanding officer may be legally represented at a hearing.

(4) A person may be appointed as a legal representative under paragraph (2) or (3) only if he is—

(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990(1);

(b) an advocate or solicitor in Scotland;

(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or

(d) a person who has in any of the Channel Islands, the Isle of Man, a Commonwealth country or a British overseas territory 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.

(5) The commanding officer shall ensure that the person to whom proceedings relate is afforded reasonable opportunity of communicating with his legal representative.

(6) Any right conferred or duty imposed by these Rules on the person to whom the proceedings relate may be exercised or, as the case may be, performed by his legal representative on his behalf.

(7) A legal representative appointed under this rule shall notify the court administration officer of—

(a) his name and address;

(b) the name of the person in respect of whom he is acting and, where applicable, that person’s rank or rate, service number and unit; and

(c) the proceedings in connection with which he has been appointed.

(8) Where the person to whom the proceedings relate revokes his legal representative’s appointment, he shall as soon as reasonably practicable notify the court administration officer and the commanding officer of that fact.

Witnesses

19.  Schedule 1 shall have effect.

Interpreters

20.—(1) The court administration officer may appoint a person to act as interpreter for the purposes of any proceedings.

(2) Before an interpreter begins to act, an oath must be administered to him.

(3) Before an interpreter is sworn, his name must be read out and any party to the proceedings may object to him on any reasonable ground, and, if the judge advocate upholds any such objection, the interpreter shall not be sworn.

Oaths and affirmations

21.—(1) This rule applies where under these Rules an oath is required to be administered to a person.

(2) Sections 1 and 3 to 6 of the Oaths Act 1978(2) shall apply, as modified by paragraph (3), as they would apply if the person were required to take an oath in England and Wales.

(3) Where section 1 or 6 of that Act applies by virtue of this rule, the reference in that section to the words of the oath prescribed by law is to be read as a reference to the words prescribed by Schedule 1 for a person of the class to which the person belongs.

Record of proceedings

22.—(1) A record must be made of any proceedings under these Rules.

(2) The record of proceedings must include—

(a) a record of any order made, and any direction or ruling given, by the judge advocate; and

(b) if a court recorder was appointed for the proceedings, a sound recording of the proceedings, and any transcript of it (signed by the transcriber).

(3) The court administration officer shall send a copy of the record of proceedings to—

(a) the Judge Advocate General;

(b) the person to whom the proceedings relate;

(c) that person’s commanding officer; and

(d) the Director.

(4) The record of proceedings shall be kept in the custody of the Judge Advocate General together with any file of correspondence or other papers maintained by the court administration officer in connection with the proceedings, for at least six years from the conclusion of the proceedings.

(5) A copy of the record of proceedings, or any part of it, shall be supplied on request—

(a) to any party to the proceedings, without charge; and

(b) to any other person, on payment of such charge as may be fixed by the Judge Advocate General.

Circumstances not provided for

23.  Subject to any other enactment (including any other provision of these Rules), the judge advocate shall ensure that proceedings are conducted—

(a) in such a way as appears to him most closely to resemble the way in which comparable proceedings of a magistrates’ court in England and Wales would be conducted in comparable circumstances; and

(b) if he is unable to determine how comparable proceedings of a magistrates’ court in England and Wales would be conducted in comparable circumstances, in such a way as appears to him to be in the interests of justice.

PART 4 NOTIFICATIONS

Notification of application for an extension of custody without charge

24.—(1) Where a commanding officer proposes to make an application for an extension of custody without charge under section 101(1) he, or someone acting on his behalf, shall—

(a) notify the court administration officer of that fact and the necessary information; and

(b) inform the person arrested in writing of that fact and of the information specified in paragraph (2)(f), (g) and (h) and, if the person arrested has not appointed a legal representative, of the entitlement to legal representation at the hearing of the application.

(2) The necessary information to be notified under paragraph (1)(a) is—

(a) the name, rank, appointment and location of the commanding officer;

(b) the name, date of birth and location of the person arrested and, where applicable, his rank or rate, service number and unit;

(c) the name and address of the legal representative of the person arrested, if known;

(d) the nature of the offence or offences for which the person arrested has been arrested;

(e) the time of the arrest;

(f) the general nature of the evidence on which the person arrested has been arrested;

(g) what inquiries relating to the offence have been made and what further inquiries are proposed; and

(h) the commanding officer’s reasons for believing that the continued keeping of the person arrested in custody is justified.

(3) In relation to a person arrested under section 67 after—

(a) being arrested by a civilian policeman, or

(b) surrendering to a civilian policeman as being a person subject to service law who has deserted or is absent without leave,

the reference in paragraph (2)(e) to the time of the arrest is to the time of the earlier arrest or of the surrender, as the case may be.

Notification that accused is being kept in custody after charge

25.—(1) Where a person (“the accused”) is kept in custody after being charged, the commanding officer, or someone acting on his behalf, shall as soon as practicable—

(a) notify the court administration officer of that fact and the necessary information; and

(b) inform the accused in writing that he is to be brought before a judge advocate as soon as practicable and of the information specified in paragraph (2).

(2) The necessary information to be notified under paragraph (1) is—

(a) the name, rank, appointment and location of the commanding officer;

(b) the name, date of birth and location of the accused and, where applicable, his rank or rate, service number and unit;

(c) the name and address of the accused’s legal representative, if known;

(d) the charge or charges;

(e) the date and time that the accused was charged;

(f) the commanding officer’s reasons for believing that the continued keeping of the accused in custody is justified; and

(g) if he considers it necessary, any requirements that the commanding officer believes that the judge advocate should impose under section 107(3) of the Act.

(3) For the purposes of this rule, a person is to be treated as charged with an offence when a charge is brought under section 120(2) or 122(1).

(4) On receipt of such notification, the court administration officer shall arrange a hearing as soon as reasonably practicable.

Notification that accused has been arrested and taken into custody after charge

26.—(1) Subject to paragraph (3), where a person (“the accused”) is arrested under section 110(1) or 111(1) and kept in custody, the accused’s commanding officer, or someone acting on his behalf, shall as soon as practicable—

(a) notify the court administration officer of that fact and the necessary information; and

(b) inform the accused in writing that he is to be brought before a judge advocate as soon as practicable and, if the accused has been arrested under section 110(1), the information specified in paragraph (2)(f).

(2) The necessary information to be notified under paragraph (1)(a) is—

(a) the name, rank, appointment and location of the commanding officer;

(b) the name, date of birth and location of the accused and, where applicable, his rank or rate, service number and unit;

(c) the name and address of the accused’s legal representative, if known;

(d) the charge or charges;

(e) the date, time and place of the arrest; and

(f) if the arrest is made under section 110(1), the commanding officer’s reasons for believing that the keeping of the accused in custody is justified.

(3) Paragraph (1) shall not apply where the accused is already before a judge advocate when the arrest is made.

(4) On receipt of notification under paragraph (1)(a), the court administration officer shall arrange a hearing as soon as reasonably practicable.

Request by the commanding officer for a review

27.—(1) Subject to paragraph (3), a request for a review under section 108(2)(b) shall be made to the court administration officer by the commanding officer of the person to whom the proposed review relates (“the accused”) and shall be supported by the following information—

(a) the name, rank, appointment and location of the commanding officer;

(b) the name, date of birth and location of the accused and, where applicable, his rank or rate, service number and unit;

(c) the name and address of the accused’s legal representative, if known;

(d) the charge or charges;

(e) the date on which the extant order under section 105(2) was made and the period of custody authorised by it;

(f) the circumstances which have caused the commanding officer to consider that the grounds on which that order was made have ceased to exist; and

(g) if it appears to the commanding officer that requirements should be imposed by the judge advocate under section 107(3), the suggested requirements.

(2) Where a request is made under section 108(2)(b), the commanding officer, or someone acting on his behalf, shall inform the accused of that fact in writing and of the information specified in paragraph (1)(f) and (g).

(3) Where the commanding officer requests a review under section 108(2)(b) the prosecution has begun to open its case against the accused before the Court Martial or the Service Civilian Court and at a time when that court is sitting, the request shall be made to the judge advocate for the proceedings before that court.

Written notification

28.—(1) Where—

(a) a notification required to be given to the court administration officer under rule 24(1)(a), 25(1)(a) or 26(1)(a) is given orally, or

(b) a request under rule 27(1) is made orally,

the commanding officer shall ensure that a written notice containing the information given in support of the notification or request is served on the court administration officer as soon as practicable thereafter.

Application for variation or discharge of a requirement imposed under section 107(3)

29.—(1) An application under section 107(4) shall be made to the court administration officer and be supported by the following information—

(a) the name, rank, appointment and location of the commanding officer of the person to whom the application relates (“the accused”);

(b) the name, date of birth and location of the accused and, where applicable, his rank or rate, service number and unit;

(c) the name and address of the accused’s legal representative, if known;

(d) the charge or charges;

(e) the date of the hearing under section 105(1) and any requirements imposed under section 107(3) (including any such requirement as previously varied or discharged under section 107(4));

(f) the circumstances which have caused the applicant to consider that any such requirement should be varied or discharged; and

(g) whether the applicant seeks the variation or discharge of the requirement, and, if he seeks variation, the variation sought.

(2) Where an application is made under section 107(4) by the accused’s commanding officer, the commanding officer, or someone acting on his behalf, shall inform the accused of that fact in writing and of the information specified in paragraph (1)(f) and (g).

(3) Where an application is made under section 107(4) by or on behalf of the accused, the accused, or someone acting on his behalf, shall inform his commanding officer of that fact in writing and of the information specified in paragraph (1)(f) and (g).

(4) Where an application under section 107(4) is made orally, the applicant shall ensure that a written notice containing the information specified in paragraph (1) is served on the court administration officer, and a copy shall be served on the commanding officer or the accused, as the case may be, as soon as practicable thereafter.

(5) Where an application under section 107(4) is made after the prosecution has begun to open its case against the accused before the Court Martial or the Service Civilian Court and at a time when that court is sitting, the request shall be made to the judge advocate for the proceedings before that court.

PART 5 REVIEWS

Review dates

30.—(1) Where a judge advocate makes an order under section 105(2), he shall determine the date on which that order is to be reviewed and specify that date in the record of the order.

(2) A judge advocate may decide to carry out the review on a different date where—

(a) a request for a review is made under section 108(2)(b) and he considers that it is reasonably practicable for the review to take place before the date determined under paragraph (1), or

(b) it is not practicable or in the interests of justice for the review to take place on the date determined under paragraph (1),

in which case the court administration officer shall notify the commanding officer and the accused of the different date.

Requirement for a hearing

31.—(1) This rule applies to reviews carried out under sections 108(1), 110(4), 111(4) or 171(2).

(2) A review shall be carried out at a hearing if—

(a) it is the first review in relation to the accused;

(b) it has been requested under section 108(2)(b); or

(c) it is a review carried out at any time after the commencement of the accused’s trial by the Court Martial or the Service Civilian Court and before the announcement of that court’s finding on every charge against the accused, other than during an adjournment.

(3) In any other case, a review shall be carried out at a hearing unless—

(a) a judge advocate is satisfied on the basis of the representations made by the commanding officer under rule 32 that the grounds on which the order made under section 105(2) continue to exist;

(b) the accused has not made representations under rule 32 or, where such representations have been made, they do not contain any arguments as to fact or law which have not been heard previously; and

(c) a judge advocate is satisfied that there is no other cause for carrying out the review at a hearing.

(4) A judge advocate shall not on a review impose any requirements under section 107(3) unless the review is carried out at a hearing.

Written representations

32.—(1) This rule applies to any review other than a review to which rule 31(1) applies.

(2) The commanding officer and the accused may make written representations with respect to—

(a) the need for a hearing for the purposes of carrying out a review;

(b) whether or not a judge advocate should on a review make an order under section 105(2) authorising the keeping of the accused in custody.

(3) Any written representations made under paragraph (2) shall be served on the court administration officer and a copy shall be served on the commanding officer or, as the case may be, the accused.

Notification of hearing for the purposes of carrying out a review

33.—(1) Where a hearing is required for the purposes of carrying out a review, the court administration officer shall, after consultation with the Judge Advocate General or a person acting on his behalf, determine the time and place of the hearing.

(2) The court administration officer shall ensure that the hearing of a review takes place on the date determined by a judge advocate in accordance with rule 30.

(3) The court administration officer shall notify the commanding officer and the accused of the time and place of the hearing.

Decisions on reviews carried out without a hearing

34.—(1) This rule applies in any case where a judge advocate carries out a review without a hearing.

(2) Where the judge advocate decides not to authorise the keeping of the accused in custody he shall—

(a) notify the court administration officer of that fact as soon as practicable; and

(b) record his decision in writing.

(3) Where the court administration officer is notified under paragraph (2)(a), he shall notify the commanding officer and the accused as soon as practicable of the judge advocate’s decision.

PART 6 HEARINGS

Procedure at the hearing

35.—(1) A judge advocate shall not be bound at a hearing by any enactment or rule of law relating to the admissibility of evidence in proceedings before courts of law.

(2) The commanding officer and the person to whom the proceedings relate shall each be heard in such order as the judge advocate shall determine and, in exercising his powers under this paragraph, the judge advocate shall adopt such course as appears to him will best serve the interests of justice.

(3) The judge advocate shall explain the order of the proceedings which he proposes to adopt at the beginning of the hearing.

(4) Subject to section 108(6), the commanding officer and the person to whom the proceedings relate shall each be entitled to—

(a) give evidence on oath and call witnesses,

(b) produce to the judge advocate any document or written report, and

(c) address the judge advocate at least once,

on any matters relevant to the proceedings.

(5) The judge advocate shall make a record of the hearing unless a court recorder is in attendance.

Adjournments

36.—(1) Where a person to whom the application relates is not legally represented at a hearing, the judge advocate shall explain—

(a) the right of that person to be legally represented;

(b) the right to an adjournment if he wishes to be so represented; and

(c) the effect of such an adjournment.

Presence of witnesses

37.  Except where the person is the accused, a person who is called to give evidence shall not, except with the consent of the judge advocate, be present at a hearing while not under examination.

Privileges and immunities

38.  A witness at a hearing or any other person whose duty it is to attend before a judge advocate at the hearing shall be entitled to the same immunities and privileges as a witness before the High Court in England and Wales.

Decision of the judge advocate

39.—(1) The judge advocate shall announce his decision and the reasons for it at the end of any hearing and record that decision in writing.

(2) The court administration officer shall serve copies of the decision on the commanding officer and the accused.

PART 7 TRANSITORY AND TRANSITIONAL PROVISIONS

Supreme Court of Northern Ireland

40.  Until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005(3) comes into force, the reference in rule 18 to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland.

Transitional

41.  Schedule 3 shall have effect.

Kevan Jones

Parliamentary Under Secretary of State

Ministry of Defence

28th April 2009