Armed Forces Act 2006

Right to elect Court Martial trial U.K.

129 Right to elect Court Martial trial U.K.

(1) Before hearing a charge summarily the commanding officer must, in the way specified by rules under section 153, give the accused the opportunity of electing Court Martial trial of the charge.

(2) If the accused elects Court Martial trial of the charge—

(a) the commanding officer must refer the charge to the Director of Service Prosecutions; and

(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.

(3) Where two or more charges against the accused are to be heard summarily together, an election for Court Martial trial in respect of any of the charges takes effect as an election in respect of all of them.

[F1 (4) Subsection (5) applies if an opportunity to elect Court Martial trial of a charge (“the original charge”) has been given under subsection (1) and subsequently—

(a) the charge is amended;

(b) another charge is substituted for it; or

(c) an additional charge is brought.

(5) Subsection (1) applies in relation to the amended, substituted or additional charge; and if the amendment, substitution or addition takes place after the start of the summary hearing, that subsection has effect in relation to the charge as if the reference to hearing a charge summarily were to proceeding with the hearing.

(6) In subsection (4)—

(a) “amended” means amended under section 123(2)(a) or, in the case of a charge referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, amended under section 125(2)(a) and referred to the commanding officer under section 125(2)(e);

(b) “substituted” means substituted under section 123(2)(b) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, substituted under section 125(2)(b) and referred to the commanding officer under section 125(2)(e);

(c) “brought”, in relation to an additional charge, means brought under section 123(2)(c) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, brought under section 125(2)(c) and referred to the commanding officer under section 125(2)(e).

(7) Subsection (8) applies where—

(a) an opportunity to elect Court Martial trial of a charge has been given under this section;

(b) the accused has not elected Court Martial trial; and

(c) at a time after the giving of the opportunity to elect, the commanding officer obtains extended powers for the purposes of any provision of section 133, 134, 135 or 194.

(8) The provisions of this section requiring the giving of an opportunity to elect Court Martial trial of the charge shall apply again.]

Textual Amendments

F1 S. 129(4)-(8) substituted for s. 129(4) (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 7; S.I. 2012/669, art. 4(d)

Commencement Information

I1 S. 129 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I2 S. 129 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

130 Further consequences of election for Court Martial trial U.K.

(1) This section applies where the accused has elected Court Martial trial of a charge.

(2) The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused refer to a commanding officer, under section 125(2)(e)—

(a) that charge (whether or not amended by the Director), or

(b) any charge substituted under section 125(2)(b) or additionally brought under section 125(2)(c).

(3) Where a charge mentioned in subsection (2) is referred under section 125(2)(e), the accused may not elect Court Martial trial of the charge (and accordingly section 129(1) does not apply in respect of the charge); but this does not apply [F2 —

(a) where the charge is amended after referral;

(b) to any charge substituted for or added to the charge after referral; or

(c) where extended powers for the purposes of any provision of section 133, 134, 135 or 194 are obtained after referral.]

Textual Amendments

F2 S. 130(3)(a)-(c) substituted for words (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 8; S.I. 2012/669, art. 4(d)

Commencement Information

I3 S. 130 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I4 S. 130 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F3 130A Restrictions on DSP's powers to substitute or add charges after election U.K.

(1) This section applies where—

(a) a charge is for the time being regarded for the purposes of Part 5 as allocated for Court Martial trial; and

(b) the charge is in respect of an offence which would be a relevant offence for the purposes of Schedule 3A (sentencing powers of Court Martial where election for trial by that court) if the accused were convicted of it.

(2) The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused substitute under section 125(2)(b)—

(a) a charge in respect of an offence which is not one that may be dealt with at a summary hearing (see section 53); or

(b) a charge in respect of an offence within section 54(2) (offences that may be dealt with summarily only with permission or by senior officer), except where the relevant charge was in respect of such an offence.

(3) In subsection (2)(b) “relevant charge” means—

(a) in relation to a case A offence or a case B offence (within the meaning of Schedule 3A), the charge in respect of which the accused elected Court Martial trial; and

(b) in relation to a case C offence or a case D offence (within the meaning of Schedule 3A), the charge referred as mentioned in paragraph 4(c) of that Schedule.

(4) The Director may not without the written consent of the accused bring under section 125(2)(c) a charge in addition to the charge.

(5) In construing Part 1 of Schedule 3A (relevant offences) for the purposes of this section, paragraphs 3(b) and 5(c) of that Schedule are to be disregarded.]

Textual Amendments

F3 S. 130A inserted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 9; S.I. 2012/669, art. 4(d) (with art. 9)