The Courts-Martial (Army) Rules 2007

Rules 9 and 10

SCHEDULE 1 CHARGES AND JOINDER

PART 1 RULES

1.—(1) A charge sheet shall be in the form specified in Part 2 of this Schedule or in a form substantially to the like effect, and must contain in a paragraph called a “charge” —

(a) a statement of the offence charged that—

(i) describes the offence in ordinary language;

(ii) identifies any legislation that creates it; and

(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecuting authority alleges against the accused.

2.  More than one incident of the commission of the offence may be included in a charge if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

3.—(1) An charge sheet may contain more than one charge if all the offences charged—

(a) are found on the same facts; or

(b) form or are a part of a series of offences of the same or similar character.

4.  The charges must be numbered consecutively

5.  Where an offence created by or under an enactment states the offence to be the doing or the omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of any different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment or subordinate instrument may be stated in the alternative in a charge sheet charging the offence.

6.  It shall be sufficient in a charge sheet to describe a person whose name is not known as a person unknown.

7.  Where the offence charged is one which can be committed in circumstances involving either a higher or a lower degree of punishment, the charge shall state the facts which it is intended to prove as rendering the accused liable to the higher degree of punishment if convicted.

8.  Where the offence charged is one which may render the accused liable to the punishment of stoppages, the charge shall state any additional facts which it is intended to prove as rendering the accused liable to that punishment if convicted.

PART 2 FORM

Rules 24, 33, 34, 36, 67 and 92

SCHEDULE 2 FORMS

Where any rule requires the use of a form set out in this Schedule, that requirement shall be satisfied by the use of a form substantially to the like effect as the form set out below.

• Form 1—Form of application for a witness summons

• Form 2—Form of summons to witness

• Form 3—Form of summons to a bank manager

• Form 4— Form of application for a preliminary hearing

• Form 5—Form of notice of application for leave to adduce evidence through television link

• Form 6—Form of order by commanding officer to permit inspection of bankers’ books

• Form 7—Form of order by judge advocate to permit inspection of bankers’ books

• Form 8—Form of application for leave to adduce evidence of the bad character of a person other than an accused

• Form 9—Form of notice of intention to adduce evidence of accused’s bad character

• Form 10—Form of application to exclude evidence of accused’s bad character

• Form 11—Form of notice of intention to adduce hearsay evidence

• Form 12—Form of notice of intention to oppose admission of hearsay evidence

Rule 36 and 40

SCHEDULE 3 PRELIMINARY HEARING

The matters which may be addressed at a preliminary hearing shall include—

1.  the issues in the case;

2.  any matters concerning the proper and efficient management of the case including giving parameters to the court administration officer for the listing of the case for trial;

3.  issues, if any, as to the mental or medical condition of any accused or witness;

4.  the number of witnesses whose evidence will be placed before the court either orally or in writing;

5.  the defence witnesses in paragraph 4 whose statements have been served and whose evidence the prosecution will agree and accept in writing;

6.  any prosecution witnesses whom the defence require to attend at the trial;

7.  any additional witnesses who may be called by the prosecution and the evidence that they are expected to give;

8.  any issues as to disclosure;

9.  any alibi which should already have been disclosed in accordance with section 11 of the Criminal Justice Act 1967;

10.  facts which are to be admitted and which can be reduced into writing in accordance with section 10(2)(b) Criminal Justice Act 1967(1), within such time as may be directed at the hearing, and of any witness whose attendance will not be required at the trial;

11.  any exhibits and schedules which are to be admitted;

12.  the order and pagination of the papers to be used by the prosecution at the trial and the order in which the prosecution witnesses are likely to be called;

13.  any point of law which it is anticipated will arise in the course of the proceedings;

14.  any question as to the admissibility of evidence which appears on the face of the papers, and any authority on which the party intends to rely;

15.  any application to be made for evidence to be given through live television link;

16.  any application for a special measures direction under section 19 of the Youth Justice and Criminal Evidence Act 1999(2);

17.  any application for screens, for use by witnesses seeking a visual break between themselves and any relevant parties;

18.  whether any video, tape recorder or other technical equipment will be required during the proceedings;

19.  where a tape recorded interview has taken place, any dispute or agreement as to the accuracy of any transcript or summary;

20.  any other significant matter which might affect the proper and convenient trial of the case, and whether any additional work needs to be done by the parties;

21.  the estimated length of any trial, to be agreed more precisely taking account of any views expressed by the judge advocate and the other parties;

22.  witness availability and the approximate length of witness evidence;

23.  availability of advocate;

24.  orders prohibiting or restricting the publication of any matter or excluding the public from any proceedings

25.  challenges to the jurisdiction of the court;

26.  objection to a charge on the grounds that it is not correct in law;

27.  plea that the court is debarred from trying a charge;

28.  whether there is a need for any further directions.

Rule 59

SCHEDULE 4 OATHS AND AFFIRMATIONS

PART 1 MANNER OF ADMINISTERING OATHS AND AFFIRMATIONS

1.  The person taking the oath shall hold the New Testament, or if a Jew the Old Testament, in his uplifted hand and shall say, or repeat after the person administering it, the oath provided in Part 2 of this Schedule for that category of person.

2.  If any person to whom an oath is administered desires to swear in the form and manner in which an oath is usually administered in Scotland, he may do so with uplifted hand and saying, or repeating after the person administering it, the Scottish oath provided in Part 3 of this Schedule for that category of person.

3.  If none of the forms of oath provided in this Schedule is appropriate to the religious beliefs of the person taking the oath, an oath may be administered in such form and manner as the person taking the oath declares to be binding on his conscience in accordance with his religious beliefs.

4.  A person making a solemn affirmation instead of taking an oath shall say or repeat after the person administering it the affirmation provided in this Schedule for that category of person.

PART 2 FORMS OF OATH

President of the board and members other than the judge advocate

5.  I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to law and without partiality, favour or affection; and I do further swear that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial, unless thereunto required in due course of law.

Persons under instruction

6.  I swear by Almighty God that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial given in these proceedings unless thereunto required in due course of law.

Interpreter

7.  I swear by Almighty God that I will well and faithfully interpret and make true explanation of all such matters and things as shall be required of me according to the best of my skill and understanding.

Witness aged 18 years or over

8.  I swear by Almighty God that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.

Witness under the age of 18 years

9.  I promise before Almighty God that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.

PART 3 FORM OF SCOTTISH OATHS

10.  The form of Scottish oath shall in each case be the same as the form of oath set out above except for the relevant category of person that for the words “I swear by Almighty God” there shall be substituted the words “I swear by Almighty God and as I shall answer to God at the Great Day of Judgement”.

PART 4 FORM OF SOLEMN AFFIRMATIONS

11.  The form of affirmation shall in each case be the same as the form of oath set out above except for the relevant category of person, that for the words “I swear by Almighty God” there shall be substituted the words “I solemnly, sincerely and truly declare and affirm”.

Rule 88

SCHEDULE 5 GUIDANCE FOR PETITIONERS

1.  The petition should be settled with sufficient particularity to enable the reviewing authority to identify clearly the matters relied upon, and set out in such manner as to be reasonably easily understood.

2.  The petition should not contain grounds of appeal unless it is considered that such grounds are properly arguable.

3.  The petition should not contain any factual inaccuracy.

4.  Any allegation of fact in the petition should be based on evidence identified in the petition.

5.  The petition should not contain a suggestion that a person (other than the accused) is guilty of impropriety, crime, fraud or misconduct unless such an allegation goes to a matter in issue which is material to the accused’s case and is supported by evidence identified in the petition.

6.  Any proposition of law should be supported by references to any relevant authority, and all such authorities must be cited in the petition with sufficient particularity to identify them.

Rule 91

SCHEDULE 6 CIVILIANS

PART 1 MODIFICATIONS FOR CIVILIANS

Rule	Modification
2	For the definition of “commanding officer” the substitution of— ““commanding officer”, in relation to an accused, means such officer as may be determined by or under regulations of the Defence Council made under section 209(3)(f) of the Act;”. The addition, in the appropriate places, of the following definitions— ““period of parental recognisance” means the period specified in an order made against a parent or guardian of the accused under paragraph 14(1) of Schedule 5A to the Act or of Schedule 5A to the Air Force Act 1955 or of Schedule 4A to the Naval Discipline Act 1957; “service parent or guardian” shall be construed in accordance with paragraph 2(2) of Schedule 5A to the Act;”.
9(1)	In sub-paragraph (a), the omission of the words “service number and rank”. The omission of sub-paragraph (b).
82(1)	In sub-paragraph (a), the omission of the words “and rank or rate”. The omission of sub-paragraphs (b) and (g). For sub-paragraph (c) the substitution of— “(c) any decorations to which he is entitled;” For sub-paragraph (h) the substitution of— “(h) details of the employment of the accused.”.

PART 2 ADDITIONAL RULES FOR CIVILIANS

Prosecution of civilians

1.—(1) This rule applies where an accused has elected court-martial trial under article 16 of the Standing Civilian Courts Order 1997(3), or is to be treated under article 17 of that Order as if he had elected court-martial trial.

(2) On receipt of notice of the election, the prosecuting authority shall determine whether the charge is to be tried by general court-martial or district court-martial.

(3) Subject to paragraph (4), an accused shall be treated for the purposes of these Rules as if he had been notified by his commanding officer that he is to be tried by court-martial under rule 13.

(4) The prosecuting authority shall serve on the accused and the court administration officer a charge sheet appropriate for the court-martial trial.

Accused’s parent or guardian

2.—(1) This rule applies where—

(a) an accused is under the age of 18 years, or

(b) the offence with which the accused is charged is alleged to have been committed during a period of parental recognisance.

(2) Where the prosecuting authority or the court administration officer is required to serve any document on the accused under these Rules, he shall as soon as is practicable serve a copy of that document on a parent or guardian of the accused who is a service parent or guardian.

(3) Where the accused has not appointed a legal representative, any parent or guardian of the accused may exercise on behalf of the accused the rights granted to the accused in these Rules and may represent the accused in any proceedings of the court-martial in such matter and to such extent as the judge advocate thinks fit.

(4) (a) The judge advocate shall issue a witness summons in accordance with rule 24 in respect of any parent or guardian on whom a document has been served in accordance with paragraph (2) to attend the court-martial.

(5) Any parent or guardian of the accused may, if present—

(a) give evidence on oath and call witnesses; and

(b) address the court.

PART 3 APPEALS FROM STANDING CIVILIAN COURTS

Forwarding an appeal to the prosecuting authority

3.—(1) Where the higher authority receives a notice of appeal against conviction or sentence (or both) lodged under paragraph 18(3) of Schedule 3 to the Armed Forces Act 1976(4), he shall forward the notice to the prosecuting authority with a view to the appeal being heard by a court-martial.

(2) On receipt of a notice under paragraph (1), the prosecuting authority shall determine whether the appeal is to be heard by general court-martial or district court-martial

(3) Subject to paragraphs 4 to 6, these Rules shall be complied with as if the charge which is the subject of the appeal were a charge preferred against the accused under section 83B(4)(5) of the Act.

Charge sheet on appeal

4.—(1) Any alternative charge preferred against the accused for trial by the Standing Civilian Court on which no finding was made may be added to the charge sheet for trial by the court-martial.

(2) The prosecuting authority may not amend or substitute another charge or charges for, or discontinue proceedings on, the charge which is the subject of the appeal.

Appeal against sentence alone

5.  Where the appeal in respect of a charge is against sentence alone, the court shall proceed as if the accused had pleaded guilty to that charge before the judge advocate.

Sentencing on appeal

6.—(1) Where the appeal in respect of a charge is against conviction alone and the court find the accused guilty of the charge, it shall pass as the sentence of the court-martial in respect of that charge the sentence passed for that offence by the Standing Civilian Court or any lesser sentence which it considers appropriate.

(2) In any other case where, on appeal, the court-martial is required to pass sentence, it shall proceed to sentence the accused in accordance with these Rules subject to sub-paragraphs (3) to (5).

(3) The prosecuting authority shall, where practicable, in addition to the information listed in rule 82(1), as modified by Part 1 of this Schedule, present to the court information concerning—

(a) any offences which the Standing Civilian Court took into consideration;

(b) the result of any review of the findings or sentence of the Standing Civilian Court.

(4) In addition to its power under rule 79, the court may take into consideration any offence which was taken into consideration by the Standing Civilian Court and as to the judge advocate seems proper.

(5) The court shall award a separate sentence for each offence.

Appeal by parent or guardian of an accused

7.  Where a parent or guardian appeals against an order against him made by the Standing Civilian Court under paragraph 13 of Schedule 5A to the Act, and the accused in respect of whose conviction the order was made does not appeal against that conviction, the judge advocate shall issue a witness summons in accordance with rule 24 in respect of that accused to attend the court-martial.

Abandonment of appeal

8.—(1) An accused who has given notice of appeal to a court-martial against finding or sentence of the Standing Civilian Court may abandon the appeal or any part of it at any time before the commencement of the hearing by court-martial by giving notice in writing to the court administration officer.

(2) An accused who has given notice of appeal to a court-martial may not abandon the appeal or any part of it after the commencement of the hearing by court-martial except with the leave of the judge advocate.

(3) Where an accused fails to appear before the court-martial at the appointed time or subsequently thereafter, the judge advocate, if he considers that there is no reasonable explanation for the failure to appear, may direct that the appeal be treated as abandoned.

(4) An accused may not revive an appeal or any part of it which he has abandoned or which is treated as abandoned.

Rule 95

SCHEDULE 7 REVOCATIONS

Rules revoked	Reference
The Courts-Martial (Army) Rules 1997	S.I. 1997/169
The Courts-Martial (Army) (Amendment) Rules 2000	S.I. 2000/2374
The Courts-Martial (Army) (Amendment) Rules 2002	S.I. 2002/230
The Courts-Martial (Army) (Amendment) Rules 2005	S.I. 2005/3483
The Courts-Martial (Army) (Amendment) Rules 2007	S.I. 2007/2397

(1)

Sections 9 and 10 of the Criminal Justice Act 1967 are applied to proceedings before courts-martial subject to the modifications prescribed by the Criminal Justice Act 1967 (Application to Courts-Martial) (Evidence) Regulations 1997 (S.I. 1997/173).

(2)

1999 c. 23; section 19 of the Youth Justice and Criminal Evidence Act 1999 is applied, with modifications, to proceedings before courts-martial by the Youth Justice and Criminal Evidence Act 1999 (Application to Courts-Martial) Order 2006 (S.I. 2006/2886).

(3)

S.I. 1997/172.

(4)

1976 c. 52; Schedule 3 was amended by the Armed Forces Act 1996, section 5 and Schedule 1.

(5)

Section 83B was inserted by the Armed Forces Act 1996, section 5 and Schedule 1.