EXPLANATORY NOTE
(This note is not part of the Rules)
These Rules prescribe the procedure governing the prosecution and trial of offences at courts-martial under the Air Force Act 1955 (c.19). The Rules generally accord with procedures in the Crown Court and the Criminal Procedure Rules 2005. They replace and revoke the Courts-Martial (Royal Air Force) Rules 1997 (S.I. 1997/171) and take account of changes in the law and procedure since then, giving effect in particular to the provisions of the Armed Forces Act 2001 (c.19) and, where possible, align procedures with the Royal Navy and Army in preparation for the introduction of the standing Court Martial under the Armed Forces Act 2006 (c.52).
Part 2 of the Rules regulate the functions of the prosecuting authority and his powers to conduct formal preliminary examinations of witnesses and to modify charge sheets. This part also makes provision for notification of the accused’s commanding officer and others of proceedings or changes to charges. Matters relating to charges and joinder are also contained in this part and in Schedule 1, the wording of which reflects the newly revised wording of the Criminal Procedure Rules.
Part 3 make provision for administrative functions in relation to courts-martial and detail those not eligible for membership of a court-martial board.
Rules providing for witnesses are at Part 4. These include rules for the summonsing of witnesses to attend in person or to produce a document or thing that are now possible following the commencement of section 25 of the Armed Forces Act 2001.
Evidence as to bad character and hearsay evidence is admissible in courts-martial in the same way as in the Crown Court by virtue of section 135 of, and Schedule 7 to, the Criminal Justice Act 2003. The rules at Part 5 regulate the application for and admission of such evidence: they mirror the Crown Court procedures.
Part 6 unifies and simplifies the various types of preliminary proceedings under the previous rules (the pre-trial hearing, the hearing for directions and the preparatory hearing) into a single hearing, known as the preliminary hearing. At such a hearing the judge advocate may make any necessary directions, orders and rulings to secure the efficient management of the case and deal with any points of law or other matters that may arise before trial.
New in these Rules is the power for a judge advocate to arraign an accused person before the commencement of a trial. These and other provision relating to severance of charges, procedures after not guilty pleas, disputes of facts after finding of guilty and changes of plea are contained in Part 7.
Part 9 makes general provisions as to the appointment of a defending officer and a legal representative as well as to the roles of the judge advocate and president of the board. These Rules also detail the procedures to be followed where an accused wishes to challenge a member or members of the court-martial. The requirements for the swearing of oaths or the making of affirmations and the forms that they should take are found in this Part and Schedule 4.
The sequence of events at a trial and rules relating to the admission of evidence live television and of video recording of testimony from child witnesses are included in Part 10. These mirror the Criminal Proceedings Rules and Crown Court practice.
The procedures for determining sentence, including who may have a casting vote, as well as what evidence shall be presented before sentence is considered, is contained in Part 11.
A period of 28 days from the day sentence is announced is prescribed within which an accused may present a petition against finding or sentence or both to the reviewing authority, who is required to give reasons for his decision if such a petition is presented. These provisions are found in Part 12 and guidance for petitioners is in Schedule 5.
Part 13 makes miscellaneous provisions, in particular rule 90 conveys new jurisdiction (as provided for in paragraph 24 of Schedule 16 to the Armed Forces Act 2006) on the Courts-Martial Appeal Court to hear appeals against rulings, directions and orders made at preliminary hearings and against orders made restricting reporting or excluding the public. This part also including the power for a commanding officer or a judge advocate to make an order under section 7 of the Bankers’ Books Evidence Act 1879 (c. 11).
Modifications to these Rules with respect to the courts-martial of civilians, including the appointment of civilian members to the court-martial board, are contained in rule 91 and Schedule 6.
Revocations of previous statutory instruments are at Schedule 7.