The Armed Forces (Amendment of Court Rules) Rules 2023

Variation proceedings

16.  After rule 36 (written record) insert—

“Part 3A Variation of punishments and rescission of activation orders

Application of Part 3A

36A.   This Part applies where a commanding officer has, on or after 13th November 2023—

(a) awarded an offender a punishment, or made an activation order in respect of an offender, at a summary hearing under Part 2, or

(b) made an activation order in respect of an offender at a hearing under Part 3.

Interpretation of Part 3A

36B.   In this Part—

“commanding officer” means the commanding officer or subordinate commander who imposed the original punishment;

“original punishment” means a punishment awarded following a summary hearing;

“variation proceedings” means proceedings under this Part;

“varied punishment” means a punishment substituted for the original punishment in accordance with this Part.

Power to vary punishment or rescind activation order

36C.— (1) The commanding officer may vary or rescind the original punishment or rescind the activation order if it appears to the commanding officer that they had no power to award the original punishment or make the activation order.

(2) The power conferred by this rule—

(a) may only be exercised within the period of 56 days beginning with the day on which the original punishment was awarded or the activation order was made;

(b) may not be exercised in relation to any punishment or activation order if an appeal, or an application for leave to appeal, against the punishment or activation order has been determined;

(c) may not be exercised so as to impose a varied punishment which is more severe than the original punishment.

(3) A varied punishment takes effect from the beginning of the day on which the original punishment was awarded, unless the commanding officer otherwise directs.

(4) When exercising the power conferred by this rule, the commanding officer may not—

(a) award detention if the original punishment did not include an award of detention;

(b) increase any period of detention awarded under the original punishment.

Commencement of variation proceedings

36D.— (1) Variation proceedings may be commenced—

(a) by the commanding officer on their own motion or in response to a reference made under section 152(2B)(1) of the 2006 Act,

(b) on the application of the offender.

(2) Where proceedings are commenced by the commanding officer, the commanding officer must give the offender notice in writing of—

(a) the grounds on which the commanding officer proposes to vary the original punishment,

(b) the proposed varied punishment, and

(c) the reasons why the commanding officer considers that the varied punishment should be imposed.

(3) An application by an offender under this rule must be made in writing to the commanding officer, and must state—

(a) the grounds on which the offender says that the commanding officer had no power to award the original sentence or make the activation order, and

(b) the reasons the sentence should be varied or rescinded or the activation order rescinded.

Variation hearings

36E.— (1) Where variation proceedings are commenced, the commanding officer or a person authorised by the commanding officer must fix a time for the hearing and give the offender notice in writing of that time.

(2) In fixing the time for a hearing, the commanding officer, or the person authorised by the commanding officer under paragraph (1), must allow the offender a reasonable time to prepare for the hearing.

(3) Rules 9 (changing the time fixed for a hearing), 10 (representation), 11A (interpretation, translation and communication through an intermediary) and 24 (adjournments) apply in respect of the hearing and for the purposes of this rule—

(a) references in rules 9, 10, 11A, and 24 to “the accused” are to be read as references to the offender, and

(b) rule 9(2)(a) does not apply.

Announcement of varied punishment or recission of activation order

36F.— (1) The commanding officer must communicate the outcome of variation proceedings to the offender at the end of the hearing or as soon as is practicable after the commanding officer has reached a decision.

(2) In communicating the outcome of variation proceedings, the commanding officer must—

(a) notify the offender of—

(i) the award of any varied punishment, any decision to rescind an activation order or original punishment, or the refusal of the offender’s application for variation;

(ii) the commanding officer’s reasons, in accordance with section 252(1)(duty to give reasons and explain sentence) of the Act, for taking the action referred to in paragraph (i).

(b) when imposing a varied punishment, remind the offender of—

(i) their right of appeal under section 141 (right of appeal) of the Act,

(ii) their right to seek independent legal advice on whether to exercise the right of appeal, and

(iii) if service detention has been awarded, the right to make an election under whichever of sections 290(2) (commencement of term of service detention awarded by CO) or 291(2) (commencement of consecutive term of service detention awarded by CO) of the 2006 Act applies.

Addendum to written record

36G.— (1) After the conclusion of the variation proceedings in which the commanding officer varies the original punishment or rescinds any activation order, the commanding officer must produce an addendum to the written record (as provided for in rule 27) containing—

(a) the details of any varied punishment, or the fact that the original punishment or activation order has been rescinded,

(b) the commanding officer’s reasons, in accordance with section 252 (duty to give reasons and explain sentence) of the Act for taking the decision described in sub-paragraph (a), and

(c) such other matters as the commanding officer considers should be recorded.

(2) The commanding officer shall, as soon as reasonably practicable after the hearing, provide the offender with a copy of the addendum to the written record.

Power to order offender’s release from detention

36H.— (1) This rule applies where an offender is in detention by virtue of an original punishment awarded or activation order made by the commanding officer and the commanding officer has varied or rescinded the original punishment or rescinded the activation order in accordance with this Part.

(2) The commanding officer must order that the offender be released immediately if—

(a) the commanding officer has rescinded an activation order or rescinded the original punishment and there is no other lawful reason for the offender’s continued detention, or

(b) the offender has served all or more than the term of detention under the varied punishment and there is no other lawful reason for the offender’s continued detention.

(3) The power conferred by this rule may not be exercised in relation to any punishment or activation order if an appeal, or an application for leave to appeal, against the punishment or activation order has been determined.

(4) This rule is without prejudice to any other provision in this Part.”.

(1)

Section 152(2B) of the Armed Forces Act 2006 (c. 52) was inserted by section 4(5) of the Armed Forces Act 2021 (c. 35).