The Armed Forces (Court Martial) Rules 2009

PART 8 U.K. CONSEQUENCES OF ELECTION FOR COURT-MARTIAL TRIAL

Interpretation U.K.

25.—(1) In this Part—

“SDA election” means an election for court-martial trial under section 76AA(1) of AA 1955 or AFA 1955 or section 52D(2) of NDA 1957;

“SDA election offence” means an offence which is relevant for the purposes of section 165 by virtue of an SDA election;

“SDA non-election charge” means a charge referred to higher authority in such circumstances that the offence to which it relates would be a relevant offence by virtue of rule 156(1), as modified by paragraph 27, if the defendant were convicted or acquitted of it.

(2) References in this Part to a person's commanding officer, in relation to any time before commencement, include an appropriate superior authority.

(3) References in this Part to a hearing at which a charge would have been heard if an election had not been made, or a charge referred, are to be read, in relation to an election or referral made before commencement, as references to a hearing at which the charge would in those circumstances have been dealt with summarily under section 76B of AA 1955 or AFA 1955 or tried summarily under section 52D of NDA 1957.

Application of Part 20 to SDA elections U.K.

26.—(1) In Part 20 and this Part, “ election charge” includes—

(a) a charge as regards which an SDA election was made (including a charge to which an election on another charge relates by virtue of section 76AA(2) of AA 1955 or AFA 1955 or section 52D(2A) of NDA 1957); and

(b) a charge preferred by a prosecuting authority under section 83B(4) of AA 1955 or AFA 1955 or section 52I(4) of NDA 1957 in respect of the offence alleged in a charge within paragraph (a).

(2) In Part 20, references to the making of an election under section 129 include the making of an SDA election.

Charge referred to higher authority following election for court-martial trial on another charge U.K.

27.—(1) In relation to a person who made an SDA election, rule 156 is modified as follows.

(2) In paragraph (1)(b) the reference to a charge which at the time of the election is regarded for the purposes of Part 5 of the 2006 Act as allocated for summary hearing is to be read as a reference to a charge which, at the time of the election, could have been dealt with or tried by the person's commanding officer.

(3) In paragraph (1)(d) the reference to a referral of a charge to the Director under section 123(2)(e) is to be read as a reference to the referral of the charge to higher authority under section 76(5)(b) of AA 1955 or AFA 1955 or section 52B(5)(b) of NDA 1957.

(4) In paragraph (2)(b)—

(a) the reference to a charge brought under section 125 in addition to a charge includes an additional charge preferred under section 83B(8)(b) of AA 1955 or AFA 1955 or section 52I(7)(b) of NDA 1957; and

(b) the reference to a charge substituted for a charge includes—

(i) a charge preferred by a prosecuting authority under section 83B(4) of AA 1955 or AFA 1955 or section 52I(4) of NDA 1957 in respect of an offence other than the offence alleged in the charge as regards which the election was made; and

(ii) a charge substituted under section 83B(8)(a) of AA 1955 or AFA 1955 or section 52I(7)(a) of NDA 1957.

Powers of the Director U.K.

28.—(1) This paragraph applies, and rule 157(3) does not apply, where a charge is allocated for Court Martial trial and is a relevant charge (within the meaning of rule 157) by virtue of an SDA election.

(2) Where the election charge was brought under AA 1955 or AFA 1955, the Director may not, without the written consent of the defendant, substitute under section 125(2)(b) a charge of an offence if, at the time of the election, a charge of that offence would not have been capable of being dealt with summarily (within the meaning of section 76(6)(b) of AA 1955 or AFA 1955, as the case may be).

(3) Where the election charge was brought under NDA 1957, the Director may not, without the written consent of the defendant, substitute under section 125(2)(b) a charge of an offence if, at the time of the election, a charge of that offence would not have been capable of being tried summarily (within the meaning of NDA 1957).

Sentence for an SDA election offence relevant by virtue of section 165(1)(a) or (b) U.K.

29.—(1) This paragraph applies, and section 165(2) and rule 158 do not apply, where—

(a) the court convicts a person of an SDA election offence which is relevant by virtue of section 165(1)(a) or (b); and

(b) section 165(4) does not apply.

(2) If there was one election charge, the sentence passed in respect of the offence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the election charge summarily and found it proved.

(3) If there were two or more election charges, the sentence passed in respect of the offence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the election charges summarily, together, and found them proved.

Sentence where charge referred following SDA election on another charge U.K.

30.—(1) This paragraph applies, and rule 159 does not apply, where—

(a) the court convicts a person of an SDA election offence which is relevant by virtue of rule 156 as modified by paragraph 27; and

(b) section 165(4) does not apply.

(2) If there was one SDA non-election charge, the sentence passed in respect of the offence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the non-election charge summarily and found it proved.

(3) If there were two or more SDA non-election charges, the sentence passed in respect of the offence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the non-election charges summarily, together, and found them proved.

Multiple relevant offences where election under AA 1955 U.K.

31.—(1) Where the court convicts a person of two or more offences which are relevant by virtue of an election under section 76AA(1) of AA 1955, section 165(4) does not apply.

(2) Where—

(a) by virtue of sub-paragraph (1), section 165(4) does not apply, and

(b) by reason of that fact, paragraph 29 or 30 applies,

references in paragraph 29 or 30 (as the case may be) to the sentence passed in respect of the offence are to be read as references to the combination of the sentences passed in respect of the offences.

Sentence for multiple relevant offences U.K.

32.—(1) This paragraph applies where—

(a) the court convicts a person of two or more SDA election offences; and

(b) section 165(4) applies.

(2) Sub-paragraphs (3) and (4) apply, and rule 161(4) and (5) do not apply, where the joined offences are relevant by virtue of section 165(1)(a) or (b).

(3) If there was one election charge, the sentence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the election charge summarily and found it proved.

(4) If there were two or more election charges, the sentence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the election charges summarily, together, and found them proved.

(5) Sub-paragraphs (6) and (7) apply, and rule 161(7) and (8) do not apply, where the joined offences are relevant by virtue of rule 156 (as modified by paragraph 27).

(6) If there was one SDA non-election charge, the sentence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the non-election charge summarily and found it proved.

(7) If there were two or more SDA non-election charges, the sentence may not be more severe than the most severe punishment that the person's commanding officer could have awarded if he had dealt with or tried the non-election charges summarily, together, and found them proved.

(8) In this paragraph, “the joined offences” and “the sentence” have the same meaning as in rule 161.

Activation of suspended SDA sentence of detention U.K.

33.—(1) The court may not, by virtue of having convicted a person of an SDA election offence, make an order under section 191(3) in respect of a sentence passed under AA 1955 or AFA 1955.

(2) Sub-paragraph (3) applies where, by virtue of having convicted a person of an SDA election offence, the court makes an order under section 191(3) in respect of a sentence of detention passed under NDA 1957 for a term of more than 90 days.

(3) The order must provide—

(a) that the suspended sentence shall take effect with the substitution of a term of 90 days or less for the original term; or

(b) that the suspended sentence—

(i) shall take effect for 90 days; and

(ii) shall then have effect as if it were a suspended sentence of service detention for a term of not more than that part of the original term which exceeds 90 days.