Part 6Summary Hearing and Appeals and Review

Chapter 1Summary Hearing

Right to elect Court Martial trial

129Right to elect Court Martial trial

(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.