Part II Trial and punishment of offences
F8 The prosecuting authority
F952H The prosecuting authority.
1
Her Majesty may appoint a qualified officer of Her naval forces to be the prosecuting authority for the Royal Navy; and in this Act “the prosecuting authority” means the officer so appointed.
2
An officer shall not be qualified to be appointed as the prosecuting authority unless he is—
a
a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;.
b
an advocate or solicitor in Scotland of at least five years’ standing; or
c
a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least five years’ standing.
F252I Functions of the prosecuting authority.
1
This section applies where a case has been referred to the prosecuting authority.
C12
If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall refer the case to the commanding officer of the accused for the preliminary charge to be tried summarily.
3
In subsection (2) above “the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial.
4
If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and F10(subject to section 52II of this Act) prefer any such charge.
5
The prosecuting authority shall, in accordance with rules under section 58 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.
6
The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
7
Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act—
a
amend, or substitute another charge or charges for, any charge preferred;
b
prefer an additional charge, or additional charges, against the accused;
c
discontinue proceedings on any charge.
8
The powers mentioned in subsection (7)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.
F118A
If the case has been referred to the prosecuting authority as a result of an election for court-martial trial, the prosecuting authority may not—
a
determine under subsection (4) above that a charge different from that in respect of which the election was made is to be preferred, or
b
exercise any power mentioned in subsection (7)(a) or (b) above in relation to any charge against the accused before the commencement of the trial,
unless the accused has given his written consent or the charge is being referred under section 52II of this Act.
9
The prosecuting authority may not exercise any power mentioned in subsection (7)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.
10
If, before the commencement of the trial of a charge against the accused (“the original charge”), the prosecuting authority exercises the power mentioned in subsection (7)(b) above, he may, in accordance with rules under section 58 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (5) above shall apply with such exceptions and modifications as may be prescribed.
11
The prosecuting authority may not exercise the power mentioned in subsection (7)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.
F312
If the prosecuting authority—
a
decides not to prefer any charge referred to him, or
b
before the commencement of the trial of any charge preferred by him, discontinues proceedings on that charge,
he may direct that the accused shall not be liable to be tried summarily or by court-martial for the offence charged.
13
If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (12) above.
52IIF4 Cases where charge may be referred back to commanding officer.
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Where—
a
a case has been referred to the prosecuting authority as a result of an election for court-martial trial, and
b
the prosecuting authority considers that a charge different from, or additional to, the preliminary charge should be preferred,
the prosecuting authority may refer back to the commanding officer of the accused the charge or charges which the prosecuting authority considers should be preferred.
2
In subsection (1) above—
a
“the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial, and
b
the reference to preferring a charge different from, or additional to, the preliminary charge includes a reference to amending, or substituting another charge for, a charge already preferred.
F52A
Where—
a
a case has been referred to the prosecuting authority otherwise than as a result of an election for court-martial trial,
b
the prosecuting authority—
i
in respect of the case or part of the case, does not determine any charge to be preferred, or
ii
before the commencement of the trial of any charge preferred, discontinues proceedings on that charge, and
c
the accused is below the rank of captain,
the prosecuting authority may refer the case, or the part concerned, back to the commanding officer of the accused.
3
Where a charge is referred to a commanding officer under subsection (1) F12or (2A) above, the commanding officer shall deal with the charge as if it had been reported to him under section 52B(1) of this Act.
52IJF6 Power of prosecuting authority to advise police forces
1
The prosecuting authority may give advice to police forces on all matters relating to offences under this Act (including offences under the Reserve Forces Act 1996 which by virtue of subsection (1) of section 103 of that Act are treated for the purposes mentioned in that subsection as being offences under this Act).
2
In this section “police force” means any of the following—
a
the Royal Navy Regulating Branch;
b
the Royal Air Force Police;
c
the Royal Military Police;
d
the Ministry of Defence Police;
e
any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);
f
the metropolitan police force;
g
the City of London police force;
h
any police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967;
i
the Police Service of Northern Ireland;
j
the British Transport Police;
k
the National Crime Squad.
F752J Prosecuting officers.
1
The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.
2
An officer shall not be appointed as a prosecuting officer unless he is—
a
a person who has a general qualification within the meaning of section 71 of the M1Courts and Legal Services Act 1990;
b
an advocate or solicitor in Scotland; or
c
a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.
Crossheading and ss. 52H-52J inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 16; S.I. 1997/304, art. 2 (with art. 3)