The Armed Forces (Summary Appeal Court) Rules 2009

PART 3 BRINGING AN APPEAL

CHAPTER 1 APPEALS BROUGHT BY A PERSON TO WHOM A CHARGE RELATES

Notice of appeal

15.—(1) An appeal under section 141 shall be brought by serving (before the expiry of the initial period) a written notice of appeal on the commanding officer.

(2) The commanding officer shall serve the notice on the court administration officer and a copy of the notice and the documents required under paragraph (3) on the Director.

(3) The documents are—

(a) the written record of the summary hearing;

(b) a copy of the disciplinary record of the appellant;

(c) a copy of any witness statement prepared for the purposes of the summary hearing;

(d) details of all exhibits that form part of the evidence (whether used or unused at the summary hearing) and where and when they can be inspected;

(e) a list of persons whose evidence was not adduced at the summary hearing but who appear to the commanding officer to be potential witnesses in the proceedings before the court;

(f) any material in the possession of the commanding officer which is not annexed or referred to in the written record but which in his opinion may be material to the proceedings before the court;

(g) if the commanding officer was granted authority to hear the charge summarily, a copy of any document conveying that authority;

(h) if the commanding officer had extended powers for the purposes of section 133(1)(a) or (2), 134(1), 135(1) or 136(1)(b), a copy of any document conveying those powers; and

(i) a document specifying the appellant’s age, his rank or rate and any recognised acts of gallantry.

(4) In this rule—

“disciplinary record” means all formal disciplinary records of the appellant maintained and held by any of Her Majesty’s forces;

“initial period” has the meaning given in section 141(2)(a); and

“written record” has the meaning given in Rules made under section 153.

Application to extend initial period or for leave to appeal out of time

16.—(1) An application, under section 141(2)(b) (extension of initial period) or 141(3) (leave to appeal out of time) shall be made in writing to the commanding officer and shall state—

(a) if made under section 141(2)(b)–

(i) why the applicant is not able to bring an appeal within the initial period; and

(ii) what longer period he wishes the court to grant; or

(b) if made under section 141(3)–

(i) why the applicant did not appeal within the initial period; and

(ii) be accompanied by the proposed notice of appeal.

(2) The commanding officer shall serve the application together with a copy of the written record on the court administration officer who shall forward them to the Judge Advocate General and the Director.

(3) The Judge Advocate General may—

(a) grant the application;

(b) grant the application and substitute for any period stated in the application a different period;

(c) inform the court administration officer that he is minded to dismiss the application without a hearing; or

(d) direct a hearing of the application.

(4) Where the Judge Advocate General is minded to dismiss the application without a hearing, the court administration officer shall notify the applicant in writing of that fact and provide a copy of such notification to the commanding officer.

(5) Where the applicant is given notice under paragraph (4), the application shall be treated as dismissed unless, not more than 14 days from the receipt of the notice, the applicant gives notice in writing to the commanding officer that he requires a hearing of the application.

(6) The commanding officer must forward any notice given under paragraph (5) to the court administration officer and the Director.

(7) There shall be a hearing of the application if—

(a) the Judge Advocate General directs a hearing; or

(b) the applicant requires one.

(8) A hearing of the application shall be before a judge advocate.

(9) At a hearing of the application—

(a) the applicant may address the judge advocate; and

(b) the Director may, with leave, address the judge advocate.

(10) The court administration officer shall serve notice of any decision to grant or refuse an application under this rule on—

(a) the applicant;

(b) the Director; and

(c) the commanding officer.

(11) In this rule, “initial period” has the meaning given in section 141(2)(a).

CHAPTER 2 APPLICATION OR NOTIFICATION BY THE REVIEWING AUTHORITY

Application by the reviewing authority

17.—(1) An application for leave to refer a finding or punishment to the court under–

(a) section 152(4) (as on appeal), or

(b) section 152(7) (referral of new matters after appeal hearing),

shall be made in writing to the court administration officer.

(2) Such an application must—

(a) state why the reviewing authority considers it appropriate that the court consider an appeal; and

(b) be accompanied by any other documents the reviewing authority considers relevant to the determination of the application.

(3) The court administration officer shall forward the application to the Judge Advocate General, the Director, the appellant and the commanding officer.

(4) The reviewing authority may withdraw an application at any time before the determination of the application for leave by giving notice in writing to the court administration officer.

(5) The Judge Advocate General may—

(a) grant the application;

(b) inform the court administration officer that he is minded to dismiss the application without a hearing; or

(c) direct a hearing of the application.

(6) Where the Judge Advocate General is minded to dismiss the application without a hearing, the court administration officer shall notify the reviewing authority, the appellant and the commanding officer in writing of that fact.

(7) Where the reviewing authority and the appellant are given notice under paragraph (6), the application shall be treated as dismissed unless the reviewing authority gives notice in writing to the court administration officer, or the appellant gives notice in writing to his commanding officer, as the case may be, before the end of the period of 14 days beginning with the date of the notice under paragraph (6), that he requires a hearing of the application.

(8) Where an appellant has given notice to his commanding officer under paragraph (7) the commanding officer must forward any such notice to the court administration officer and the Director.

(9) There shall be a hearing of the application if—

(a) the Judge Advocate General directs a hearing; or

(b) the reviewing authority or the appellant requires a hearing under paragraph (7).

(10) A hearing of the application shall be before a judge advocate.

(11) At a hearing of the application—

(a) the reviewing authority and appellant may address the judge advocate; and

(b) the Director may, with leave, address the judge advocate.

(12) The court administration officer shall serve notice of any decision to grant or refuse an application under this rule on—

(a) the reviewing authority;

(b) the appellant;

(c) the Director; and

(d) the commanding officer.

Notification by the reviewing authority

18.—(1) Notification under section 152(6) shall be made in writing to the court administration officer.

(2) The court administration officer shall forward the notification to the Director and the judge advocate hearing the appeal.

(3) A copy of the notification shall be served on the appellant.

CHAPTER 3 UNCONTESTED APPEALS

Director to give notice of intention on receipt of notice of appeal

19.—(1) Where—

(a) a notice of appeal under rule 15,

(b) notice that an application under rule 16 has been granted, or

(c) notice that an application under rule 17 has been granted,

has been served on the Director and that notice relates to one or more appeals against finding, the Director shall, within 28 days from the date of that notice, give notice in writing to the court administration officer indicating whether or not he intends to contest any such appeal.

(2) Where the Director has given notice under paragraph (1) that he intends to contest an appeal, he may at any time prior to the hearing of the appeal give notice that he no longer intends to contest it; and any such notice shall have effect for the purposes of these Rules as a notice under paragraph (1) that he does not intend to contest the appeal.

(3) Where the Director does not within the period specified in paragraph (1) give notice that he intends to contest the appeal, the failure to give notice shall have the effect as a notice under paragraph (1) that he does not intend to contest the appeal.

(4) On the application of the Director, the Judge Advocate General may, if he considers it in the interests of justice to so do, extend the period at paragraph (1).

Powers of the court in uncontested appeals

20.—(1) Where the Director gives notice under rule 19(1) that he does not intend to contest an appeal, the court shall quash the finding against which the appeal is brought.

(2) Where any punishment awarded relates to one or more findings each of which is the subject of an appeal and in respect of each of which the Director has given notice under rule 19(1) that he does not intend to contest the appeal—

(a) the power of the court to quash the finding(s) under section 147(1)(a) may be exercised by the Judge Advocate General without a hearing; and

(b) any decision of the Judge Advocate General in exercise of those powers shall be recorded in writing and dated and signed by him.

(3) The court administration officer shall serve a copy of any decision of the Judge Advocate General under this rule on—

(a) the appellant;

(b) the commanding officer;

(c) the Director; and

(d) where the appeal falls to be considered by the court on a reference made by the reviewing authority, the reviewing authority.