The Armed Forces (Summary Appeal Court) Rules 2009

PART 12 HEARING OF AN APPEAL: PROCEDURE

CHAPTER 1 APPEAL AGAINST FINDING

Address to the court

75.—(1) If the appeal is an appeal against finding, and without prejudice to paragraphs (3) and (4), the Director and the appellant may each address the court once with respect to the case against the appellant on the charges being heard by the court.

(2) For the purposes of paragraph (1)—

(a) the Director shall address the court immediately before adducing any evidence; and

(b) the appellant shall address the court immediately after the close of his own case or, where there is more than one appellant, after the close of the case for all of the appellants.

(3) The Director or appellant may with the leave of the court address it at any time during the hearing on any matter relating to the appeal or the charges which are being heard by the court.

(4) The court shall not exercise its powers under section 147(1)(b) to substitute another finding without affording the appellant and the Director the opportunity to address it on the exercise of those powers in the particular case.

Provisions which are to apply when there are two or more appellants

76.—(1) This rule shall apply when the court has, in accordance with rule 48, decided to hear appeals by more than one appellant at the same time.

(2) The respondent’s case on each of the charges before the court shall be put before the case of any of the appellants, and the Director may make only one address in pursuance of rule 75(1).

(3) Before the opening of the respondent’s case, the judge advocate shall decide the order which the appellants are to put their case and to address the court in pursuance of rule 75(1).

(4) Where the same legal representative represents two or more appellants, he may make only one address to the court in pursuance of rule 75(1).

(5) The court shall not close to deliberate on its findings until the close of the case for each of the appellants and each of the appellants have had the opportunity to address the court in pursuance of rule 75(1).

Examination of witnesses

77.—(1) The judge advocate may question any witness, or put to the witness a question from a lay member.

(2) If it appears to the judge advocate to be in the interests of justice, the court may—

(a) allow the cross-examination or re-examination of a witness to be postponed;

(b) call any witness whom it has not already heard;

(c) recall a witness;

(d) permit any party to recall a witness;

(e) permit the Director to call a witness after the close of the case for the respondent; or

(f) permit an appellant to give evidence after calling another witness.

Presence of witnesses

78.—(1) Except for an appellant and any expert or character witness, a witness as to fact shall not, except by leave of the judge advocate, be in court while not under examination.

(2) If while a witness is under examination a question arises as to the admissibility of a question or otherwise with regard to the evidence, the judge advocate may direct the witness to withdraw until the question is determined.

(3) The judge advocate may direct any expert or character witness present in court to withdraw if the judge advocate considers his presence undesirable.

(4) For the purposes of this rule a witness is in court if he is able to see and hear the court through a live link.

Submission of no case to answer

79.—(1) At the close of the case for the respondent an appellant may submit, in respect of any charge, that the Director has failed to establish a case for him to answer.

(2) Without prejudice to the generality of rule 40, the judge advocate shall hear and rule on such a submission in the absence of the lay members.

(3) If such a submission is allowed, the judge advocate shall direct the court to quash the finding.

The case for the appellant

80.  Subject to rule 77(2), where an appellant gives evidence, he must do so before calling any other witness.

Finding for the appellant before conclusion of the case for the appellant

81.—(1) At any time after the close of the case for the respondent, the court may find an appellant not guilty on a charge.

(2) The court may not make a finding under this rule before the summing-up unless the judge advocate has invited the Director to address the court as to whether such a finding should be made.

Announcement of findings

82.  The finding of the court shall be announced by the judge advocate.

CHAPTER 2 APPEAL AGAINST PUNISHMENT

Application and interpretation of this Chapter

83.  This Chapter applies in relation to—

(a) any proceedings where the court has upheld a finding that a charge has been proved;

(b) any proceedings where the court has exercised its power under section 147(1)(b) to substitute for the finding concerned a finding that another charge has been proved; or

(c) an appeal against punishment.

Dispute on facts

84.—(1) In the case of an appeal against punishment, where there are disputed facts in the case, the judge advocate may direct that any issue of fact be tried by the court.

(2) The finding of the court on any such issue shall be determined by a majority of the votes of the members of the court.

(3) The finding of the court shall be announced by the judge advocate.

Pre-sentence report and previous convictions

85.—(1) Where the court administration officer has arranged for a pre-sentence report to be prepared in advance of the proceedings, he shall serve a copy on the Director and the appellant before the time appointed for the proceedings.

(2) Where the Director has obtained a record of the appellant’s previous convictions in advance of the proceedings, he shall serve a copy on the appellant and the court administration officer before the time appointed for the proceedings.

Information before punishment

86.—(1) Where—

(a) the proceedings are an appeal against punishment, or

(b) previous sentencing proceedings in respect of the appellant were terminated,

the Director shall address the court on the facts of the case.

(2) Where practicable, the Director shall inform the court of—

(a) the appellant’s age and rank or rate;

(b) the appellant’s service record;

(c) any recognised acts of gallantry or distinguished conduct on the part of the appellant, and any decoration to which he is entitled;

(d) any previous convictions of the appellant for—

(i) service offences,

(ii) offences under the law of any part of the United Kingdom, or

(iii) relevant offences under the law of another member State,

any sentence awarded in respect of any such offence, and whether any such conviction is spent for the purposes of the Rehabilitation of Offenders Act 1974(1);

(e) any formal police caution administered to the offender by a constable in England and Wales or Northern Ireland;

(f) the appellant’s pay, terminal benefits and future pension entitlements;

(g) whether the commanding officer had extended powers for the purposes of sections 133(1)(a) or (2), 134(1), 135(1) or 136(1)(b); and

(h) the punishment awarded by the commanding officer.

(3) For the purposes of paragraph (2)(d) an offence is “relevant” if the act that constituted the offence would have constituted an offence under the law of any part of the United Kingdom if it had been done in that part at the time when the Director presents information to the court under this rule.

(4) Where the commanding officer made an activation order under section 193(3) (activation of a suspended sentence of service detention) the Director shall inform the court of that fact, of the previous offence by virtue of which the commanding officer had that power, and of the punishment awarded for that offence.

(5) Where the offender is not subject to service law but has formerly been so subject, paragraph (2) has effect as if—

(a) for the words “and rank or rate” in sub-paragraph (a) there were substituted “and his rank or rate when he last ceased to be subject to service law”; and

(b) before the word “pay” in sub-paragraph (f) there were inserted “employment,”.

Mitigation of punishment

87.  The appellant may—

(a) call witnesses in mitigation of punishment or as to his character;

(b) produce to the court any document; and

(c) address the court in mitigation of punishment.

Pronouncement of punishment

88.—(1) The punishment shall be recorded in writing, dated and signed by the judge advocate.

(2) The judge advocate shall pronounce punishment and make the statement of reasons, and give the explanation, required by section 252(1).

(3) In this rule “punishment” has the same meaning as “sentence” in section 252.

(1)

1974 c. 53. Sections 2 and 6 of the Rehabilitation of Offenders Act 1974 were amended, and the Schedule inserted, by the Armed Forces Act 1996 (c. 46), section 13 and Schedule 4. Sections 1, 2 and 5, and the Schedule, were further amended by paragraphs 63 to 66 of Schedule 16 to the Act.