Part 5Investigation, Charging and Mode of Trial
Chapter 2Charging and Mode of Trial
Powers of charging etc
119Circumstances in which CO has power to charge etc
(1)
This section sets out the circumstances in which a commanding officer has initial powers (defined by section 120) in respect of a case.
(2)
If a commanding officer of a person becomes aware of an allegation which indicates, or circumstances which indicate, that the person has or may have committed a service offence, he has initial powers in respect of the case.
(3)
Subsection (2) does not apply if the allegation or circumstances—
(a)
give or have given rise to the duty under section 113(1) or 114(1);
(b)
are being or have been investigated by a service police force F1or the tri-service serious crime unit; or
(c)
are being or have been investigated by a UK police force or overseas police force, and it appears to the commanding officer that that force may refer the matter to the service police.
(4)
A commanding officer has initial powers in respect of a case which a service policeman has referred to him under section 116(3) (referral of case following investigation by service or civilian police).
(5)
A commanding officer has initial powers in respect of a case which the Director of Service Prosecutions has referred to him under section 121(4) (referral of case by DSP).
(6)
If an allegation or circumstances mentioned in subsection (2) relate to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons, each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.
120Power of CO to charge etc
(1)
Subsections (2) and (3) apply where under section 119 a commanding officer has initial powers in respect of a case.
(2)
The officer may bring, in respect of the case, one or more charges that are capable of being heard summarily (see section 52).
(3)
The officer may refer the case to the Director of Service Prosecutions.
(4)
A charge brought under subsection (2) is to be regarded for the purposes of this Part as allocated for summary hearing.
(5)
F2Where an officer has referred a case under subsection (3), the officer must also refer to the Director of Service Prosecutions any other case—
(a)
which is of a description prescribed by regulations under section 128 for the purposes of this subsection, and
(b)
as respects which the officer has initial powers,
F3....
121Power of DSP to F4charge or direct bringing of charge etc
(1)
The powers in F5subsections (1A) to (5) are exercisable by the Director of Service Prosecutions (“the Director”) in respect of a case which has been referred to him under—
(a)
section 116(2) (referral of case following investigation by service or civilian police);
F6(aa)
section 117(5) (referral of connected cases); or
(b)
section 120(3) F7or (5) (referral of case by CO).
F8(1A)
The Director may bring a charge or charges against the person concerned in respect of the case.
(1B)
If—
(a)
the Director brings a charge under subsection (1A), and
(b)
the Service Civilian Court has jurisdiction to try the charge,
the Director may allocate the charge for trial by that court.
(2)
The Director may direct the commanding officer of the person concerned to bring, in respect of the case, such charge or charges against him as may be specified in the direction.
(3)
If—
(a)
the Director makes a direction under subsection (2), and
(b)
the Service Civilian Court has jurisdiction to try the charge specified in the direction,
the Director may allocate the charge for trial by that court.
(4)
The Director may refer the case to the commanding officer of the person concerned, but only if he has decided that it would not be appropriate F9to bring a charge under subsection (1A) or to make a direction under subsection (2) in respect of it.
(5)
The Director may make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of any offence as regards which he could F10bring a charge under subsection (1A) or make a direction under subsection (2).
122Charges brought F11by or at direction of DSP
(1)
Where a direction under section 121(2) is given to an officer, he must bring the charge or charges specified in the direction.
(2)
A charge F12brought by the Director of Service Prosecutions (“the Director”) under section 121(1A) or by an officer as a result of a direction under section 121(2)—
(a)
is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial if F13the Director allocated it (under section 121(1B) or (3)) for trial by that court;
(b)
otherwise, is to be regarded for the purposes of this Part as allocated for Court Martial trial.
Powers of commanding officer or DSP after charge etc
123Powers of CO after charge
(1)
This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for summary hearing.
(2)
The accused's commanding officer may—
(a)
amend the charge;
(b)
substitute for the charge another charge against the accused;
(c)
bring an additional charge against the accused;
(d)
discontinue proceedings on the charge;
(e)
refer the charge to the Director of Service Prosecutions.
(3)
The powers under subsection (2) may be exercised before or after the start of any summary hearing of the charge.
(4)
Any amended, substituted or additional charge under subsection (2)(a) to (c) must be capable of being heard summarily (see section 52).
(5)
Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.
(6)
Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for summary hearing.
(7)
Where a charge is referred under subsection (2)(e) to the Director of Service Prosecutions, the charge and any other charge brought in respect of the same case are to be regarded for the purposes of this Part as allocated for Court Martial trial.
124CO to hear charge allocated for summary hearing
(1)
This section applies in respect of a charge which is regarded for the purposes of this Part as allocated for summary hearing.
(2)
The accused's commanding officer must hear the charge summarily unless—
(a)
he exercises his powers under section 123(2)(b), (d) or (e) in respect of the charge (substitution of charge, discontinuance of proceedings, or referral to DSP); or
(b)
the accused elects Court Martial trial of the charge (see section 129).
(3)
Subsection (2) is subject to sections 52 (charges capable of being heard summarily) and 54 (charges which may be heard summarily only with permission or by senior officer).
125Powers of DSP in respect of charge allocated for Court Martial trial
(1)
This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Court Martial trial.
(2)
The Director of Service Prosecutions may—
(a)
amend the charge;
(b)
substitute for the charge another charge against the accused;
(c)
bring an additional charge against the accused;
(d)
discontinue proceedings on the charge;
(e)
refer the charge to the accused's commanding officer, but only if the charge is capable of being heard summarily (see section 52);
(f)
allocate the charge for trial by the Service Civilian Court, but only if the charge is one that that court has jurisdiction to try;
(g)
make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.
(3)
Court Martial rules may restrict the exercise of powers under subsection (2)—
(a)
after arraignment by the Court Martial; F14or
(b)
after referral of the charge to the Court Martial under section 279(4) or 280(3) (referral by SCC); F15...
F15(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F16(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)
Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.
(6)
Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Court Martial trial.
(7)
Any charge referred under subsection (2)(e) to a commanding officer is to be regarded for the purposes of this Part as allocated for summary hearing.
(8)
Any charge allocated under subsection (2)(f) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.
126Powers of DSP in respect of charge allocated for SCC trial
(1)
This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Service Civilian Court trial.
(2)
The Director of Service Prosecutions may—
(a)
amend the charge;
(b)
substitute for the charge another charge against the accused;
(c)
bring an additional charge against the accused;
(d)
discontinue proceedings on the charge;
(e)
allocate the charge for trial by the Court Martial;
(f)
make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.
(3)
SCC rules may restrict the exercise, after a decision by the Service Civilian Court under section 279 as to whether it should try the charge, of powers under subsection (2).
(4)
Any amended, substituted or additional charge under subsection (2)(a) to (c) must be one that the Service Civilian Court has jurisdiction to try.
(5)
Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.
(6)
Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.
(7)
Any charge allocated under subsection (2)(e) is to be regarded for the purposes of this Part as allocated for Court Martial trial.