C5C6Part II Discipline and Trial and Punishment of Military Offences
Part II applied (1.6.1996 subject to art. 3 of the commencing S.I.) by Armed Forces Act 1991 (c. 62, SIF 7:1), ss. 18(9)(a), 20(10)(a); S.I. 1996/1173, art. 2
Courts-martial: provisions relating to trial
92 Challenges by accused.
1
An accused about to be tried by any court-martial shall be entitled to object, on any reasonablegrounds, to any member of the court, whether appointed originally or in lieu of another F23member.
2
For the purpose of enabling the accused to avail himself of the right conferred by the last foregoingsubsection, the names of the members of the court shall be read over in the presence of the accused before F24the officers appointed members are sworn, and he shall be asked whether he objects to any of F25the members.
3
4
5
F336
If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Judge Advocate General.
C493 Administration of oaths.
1
F381A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F391B
A witness before a court-martial—
a
shall be examined on oath if he has attained the age of fourteen; and
b
shall give evidence unsworn if he is under that age.
2
Unsworn evidence admitted by virtue of subsection (1B)(b) above may corroborate evidence (sworn or unsworn) given by any other person.
F40F412A
Unsworn evidence admitted by virtue of the proviso to subsection (2) above may corroborate evidence (sworn or unsworn) given by any other person.
3
An oath required to be administered under this section shall be in the prescribed form and shall beadministered at the prescribed time by the prescribed person and in the prescribed manner.
94 Courts-martial to sit in open court.
1
Subject to the provisions of this section, a court-martial shall sit in open court and in the presenceof the accused.
2
Nothing in the last foregoing subsection shall affect the power of a court-martial to sit in camera onthe ground that it is necessary or expedient in the interests of the administration of justice to do so;and without prejudice to that power a court-martial may order that, subject to any exceptions the court mayspecify, the public shall be excluded from all or any part of the proceedings of the court if it appearsto the court that any evidence to be given or statement to be made in the course of the proceedings or thatpart, as the case may be, might otherwise lead to the disclosure of any information which would or mightbe directly or indirectly useful to an enemy.
3
A court-martial shall sit in closed court while deliberating on their finding or sentence on any charge.
4
A court-martial may sit in closed court on any other deliberation amongst the members.
5
Where a court-martial sits in closed court no person shall be present except the members of the courtand such other persons as may be prescribed.
F26
The judge advocate shall not be present while the other members of the court are deliberating on their finding on any charge.
F27
Any ruling or direction of the judge advocate on a question of law (including a question of procedure or practice) shall be given in open court.
F28
The judge advocate may determine, and give rulings on, questions of law (including questions of procedure and practice) in the absence of the other members of the court and of any officers and other persons under instruction.
95 Dissolution of courts-martial.
1
F51A
Where, after the commencement of the trial, it appears to the judge advocate necessary or expedient in the interests of the administration of justice that a court-martial should be dissolved, he may by order dissolve the court-martial.
2
Without prejudice to the generality of the last foregoing subsection, if after the commencement of thetrial a court-martial is, by reason of the death of one of the members or for any other reason, reducedbelow the legal minimum, it shall be dissolved.
3
If after the commencement of the trial the president dies or is otherwise unable to attend and the courtis not reduced below the legal minimum, then—
a
if the senior member of the court is of the rank of captain or corresponding rank or is of higher rank,the F6judge advocate may appoint him president and the trial shall proceed accordingly; but
b
if he is not, the court shall be dissolved.
F74
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Where a court-martial is dissolved under the foregoing provisions of this section the accused may betried by another court.
96 Decisions of courts-martial.
1
Subject to the provisions of this section, F42the finding of a court-martial and any sentence awardedshall be determined by a majority of the votes of the members of the court.
F431A
The judge advocate shall not be entitled to vote on the finding.
2
In the case of an equality of votes on the finding, the court shall acquit the accused.
3
A finding of guilty where the only punishment which the court can award is death shall not have effectunless it is reached with the concurrence of all the members of the court F44entitled to vote on the finding; and where on such a finding beingcome to by a majority of F45those members there is no such concurrence, the court shall be dissolved and theaccused may be tried by another court.
4
Where the accused is found guilty and the court has power to sentence him either to death or to someless punishment, sentence of death shall not be passed without the concurrence of all the members of thecourt.
5
In the case of an equality of votes on the sentence, F46. . ., the president shall have a second or casting vote.
C197 Finding and sentence.
1
Without prejudice to the provisions of section ninety-four of this Act, the finding of a court-martialon each charge shall be announced in open court.
F82
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
98 Power to convict of offence other than that charged.
1
An accused charged before a court-martial with an offence under this Act may, on failure of proof ofthe offence having been committed under circumstances involving a higher degree of punishment, be foundguilty of the offence as having been committed under circumstances involving a less degree of punishment.
2
An accused charged before a court-martial with any offence may be found guilty of attempting to committhat offence.
3
An accused charged before a court-martial with attempting to commit an offence may be convicted on thatcharge notwithstanding that it is proved that he actually committed the offence.
4
Where an accused is charged before a court-martial under section seventy of this Act in respect ofattempting to commit a civil offence, he may be convicted on that charge notwithstanding that it is provedthat he actually committed the civil offence.
5
Where an accused is charged before a court-martial with an offence against section seventy of this Act,and the corresponding civil offence is one in proceedings for which, if he had been tried by a civil courtfor committing the offence in England, he might have been found guilty of another civil offence, then ifthe court finds that he has committed that other civil offence he may be convicted of an offence againstsection seventy of this Act in respect of the commission of that other civil offence.
6
An accused charged before a court-martial with an offence specified in the first column of the ThirdSchedule to this Act may be found guildy of an offence specified in relation thereto in the second columnof that schedule.
99 Rules of evidence.
C21
The rules as to the admissibility of evidence to be observed in proceedings before courts-martial shall F11, subject to section 99A below F12to Schedule 13 to the Criminal Justice Act 1988 (evidence before courts-martial etc.)F13and to service modifications, be the same as those observed in F14trials on indictment in England, and no person shall be required inproceedings before a court-martial to answer any question or to produce any document which he could not berequired to answer or produce in similar proceedings F15in a trial on indictment in England.
F161A
In this section “service modifications” means such modifications as the Secretary ofState may by regulations made by statutory instrument prescribe, being modifications which appear to himto be necessary or proper for the purposes of proceedings before a court-martial; and it is hereby declaredthat in this section—
“rules” includes rules contained in or made by virtue of an enactment; and
“enactment” includes an enactment contained in an Act passed after this Act.
1B
Regulations under subsection (1A) above may not modify section 99A below.
1C
Regulations under subsection (1A) above shall be subject to annulment in pursuance of a resolution ofeither House of Parliament.
2
F17C23
A court-martial shall take judicial notice of all matters of notoriety, including all matters withinthe general service knowledge of the court, and of all other matters of which judicial notice would be takenin a F18trial on indictmentin England.
99AF19 Proof at courts-martial by written statement.
C31
F20Without prejudice to section 99 above, section 9 of the M1Criminal Justice Act 1967 (proof by written statement) shall applysubject to subsection (2) below and to service modifications, for the purposes of proceedings beforecourts-martial (whether held in the United Kingdom or not) as it applies to proceedings on indictment.
C32
The statements rendered admissible by this section are statements made—
a
in the United Kingdom by any person, and
b
outside the United Kingdom by any person who at the time of making the statement was—
i
a person subject to service law, or
ii
3
In subsection (1) above “service modifications” means—
a
modifications made by any regulations under section 12 of the M6Criminal Justice Act1967 in force on the coming into force of this section, and
b
such modifications in the said section 9, as applied by subsection (1) above, as the Secretary of Statemay by regulations made by statutory instrument prescribe thereafter, being modifications which appear tohim to be necessary or proper for the purpose of the operation of that section in relation to proceedingsbefore a court-martial.
4
Regulations under subsection (3)(b) above shall be subject to annulment in pursuance of a resolutionof either House of Parliament.
C35
Section 89 of the said Act of 1967 (punishment of making false statements tendered under section 9)shall apply to any statement rendered admissible by this section.
100 Privilege of witnesses and others at courts-martial.
A witness before a court-martial or any other person whose duty it is to attend on or before the courtshall be entitled to the same immunities and privileges as a witness before the High Court in England.
101 Offences by civilians in relation to courts-martial.
Where in the United Kingdom or in any colony any person not subject to military law—
a
having been duly summoned to attend as a witness before a court-martial, fails to comply with thesummons, or
b
refuses to swear an oath when duly required by a court-martial to do so, or
c
refuses to produce any document in his custody or under his control which a court-martial has lawfullyrequired him to produce, or
d
when a witness, refuses to answer any question which a court-martial has lawfully required him toanswer, or
e
wilfully insults any person, being a member of a court-martial or a witness or any other person whoseduty it is to attend on or before the court, while that person is acting as a member thereof or is soattending, or wilfully insults any such person as aforesaid while that person is going to or returning fromthe proceedings of the court, or
f
wilfully interrupts the proceedings of a court-martial or otherwise misbehaves before the court, or
g
does any other thing which would, if the court-martial had been a court of law having power to commitfor contempt, have been contempt of that court,
the president of the court-martial may certify the offence of that person under his hand to any courtof law in the part of the United Kingdom or in the colony, as the case may be, where the offence is allegedto have been committed, being a court having power to commit for contempt, and that court of law maythereupon inquire into the alleged offence and after hearing any witnesses who may be produced against oron behalf of the person charged with the offence, and after hearing any statement that may be offered indefence, punish or take steps for the punishment of that person in like manner as if he had been guilty ofcontempt of the court to which the offence is certified:
Provided that where the offence is alleged to have been committed in the United Kingdom and thecourt-martial was held outside the United Kingdom, the certifying of the offence may be done by F47the Defence Council or any officer authorised by them.
102 Affirmations.
1
If—
a
a person required by virtue of this Act to take an oath for the purposes of proceedings before acourt-martial objects to being sworn, F21, or
b
it is not reasonably practicable to administer an oath to such a person as aforesaid in the mannerappropriate to his religious belief,
he shall be permitted to make a solemn affirmation in the prescribed form instead of taking an oath.
F222
A person who may be permitted under this section to make his solemn affirmation may also be requiredto do so, and for the purposes of this section “reasonably practicable” means reasonably practicable without inconvenience or delay.
Part II extended by Reserve Forces Act 1980 (c. 9), s. 142