The Armed Forces (Court Martial) Rules 2009

Direction that variation proceedings be held without lay members

120.—(1) Where a judge advocate directs under rule 119 that variation proceedings are to be held, he may direct that there are to be no lay members.

(2) A judge advocate may not give a direction under this rule unless satisfied that conditions A and B are met.

(3) Condition A is that one or more of the original lay members could not, without substantial inconvenience, attend the proceedings at the time and place appointed.

(4) Condition B is that, if—

(a) the proceedings were postponed until the earliest time at which the judge advocate, the original lay members and the offender could, without substantial inconvenience, attend the proceedings (whether at the place originally appointed or any other place), and

(b) the sentence were then varied in the way in which it would be most likely to be varied if no direction were given under this rule and the original lay members were specified for the proceedings and could attend,

the offender would be unfairly prejudiced by the postponement.

(5) In this rule—

(a) any reference to the attendance of the original lay members includes their attendance by live link, as defined by rule 121(2) (and for this purpose it is to be assumed that they have been or would be specified as lay members for the variation proceedings); and

(b) any reference to the attendance of the offender includes his attendance by live link, as defined by rule 18(3).

(6) Where a direction (“the original direction”) was given under rule 30 (additional lay members) in relation to the sentencing proceedings, it is to be assumed for the purposes of paragraph (4)(b) that—

(a) a direction would also be given under rule 30 in relation to the variation proceedings; and

(b) the number of lay members specified in that direction would be the same as that specified in the original direction.

(7) In this rule—

“inconvenience” includes expense, and adverse effect on the operational effectiveness of any of Her Majesty’s forces;

“the original lay members” means the persons who, at the time when the sentence that falls to be varied was imposed, were lay members for the sentencing proceedings;

“the sentencing proceedings” means the proceedings in which the sentence that falls to be varied was imposed.