The Armed Forces (Summary Appeal Court) Rules 2009

PART 5 U.K. MEMBERS OF THE COURT

Proceedings without lay members U.K.

34.—(1) For proceedings to which this rule applies, there shall be no lay members.

(2) This rule applies to preliminary proceedings.

(3) This rule applies to ancillary proceedings.

[F1 (4) This rule applies to variation proceedings if a direction is given under rule 88E.]

Textual Amendments

F1 Rule 34(4) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 8

Powers that may be exercised by a judge advocate U.K.

35.  Any power of the court may be exercised by a judge advocate, except—

(a) the power to determine an appeal, other than in proceedings to which rule 20 applies; and

(b) the power to confirm or substitute a punishment awarded [F2 ; and

(c) the power to vary a punishment, otherwise than in proceedings to which rule 34 applies.]

Textual Amendments

F2 Rule 35(c) and word inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 9

Persons ineligible for membership in particular circumstances U.K.

36.—(1) A person is ineligible for membership of the court for any appeal proceedings if, at any time since the date of the commission of the offence which is the subject of the finding against the appellant, he and the appellant were serving in the same unit.

(2) [F3 Subject to paragraphs (3A) and (3B), a] person is ineligible for membership of the court for any proceedings if he was a member of the court or of the Court Martial for any previous proceedings to which any person to whom the proceedings relate was a party.

(3) For the purposes of paragraph (2) a person is not to be regarded as having been a member of the court for any previous proceedings if those proceedings were terminated under rule 32(1) by virtue of sub-paragraph (b) of that paragraph (successful objections exceeding the number of waiting members).

[F4 (3A) A person is ineligible for membership of the court for any variation proceedings if they were not a member of the court for the proceedings in which the punishment that falls to be varied was imposed.

(3B) A person is not ineligible for membership of the court for variation proceedings by virtue of having been a member of the court for—

(a) any appeal proceedings in which the offender was convicted of any offence for which the punishment that falls to be varied was imposed;

(b) the appeal proceedings in which the punishment was imposed.]

(4) This rule does not apply to the judge advocate.

Textual Amendments

F3 Words in rule 36(2) substituted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 10(1)

F4 Rule 36(3A)(3B) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 10(2)

Objections to lay members U.K.

37.—(1) At the commencement of appeal proceedings, the names of the lay members and waiting members shall be read out.

(2) Any party to the proceedings may object to any lay member, on any reasonable ground.

(3) The judge advocate shall rule on any objection to a lay member before the lay member is sworn.

(4) If an objection to a lay member is upheld, the judge advocate shall discharge him.

[F5 (5) This rule applies to any proceedings with lay members, except variation proceedings.]

Textual Amendments

F5 Rule 37(5) inserted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 11

Waiting members U.K.

38.—(1) When the court administration officer specifies the lay members for any proceedings to which rule 37 applies, he shall at the same time specify a person (referred to in these Rules as a “ waiting member”) to take the place of any lay member who may be discharged under rule 37(4).

(2) Where a lay member is discharged under rule 37(4) the waiting member shall become a lay member.

(3) Where the court administration officer specifies a waiting member, he shall specify a second waiting member if a judge advocate so directs.

(4) A second waiting member may be specified at any time before the commencement of the proceedings.

(5) Where two waiting members have been specified and paragraph (2) applies, the reference in that paragraph to the waiting member is to the senior waiting member.

(6) Where—

(a) two waiting members have been specified, and

(b) two lay members are discharged under rule 37(4),

both the waiting members shall become lay members.

(7) Rule 37(2) to (4) applies in relation to a waiting member who becomes a lay member by virtue of this rule.

Swearing of lay members U.K.

39.  At the commencement of any proceedings to which rule 37 applies, an oath shall be administered—

(a) subject to that rule, to each of the lay members; and

(b) to any person in attendance for instruction.

Judge advocate's power to direct lay members to withdraw U.K.

40.  In any proceedings with lay members, the judge advocate may direct the lay members to withdraw while he hears submissions or gives a ruling on any question of law, practice or procedure.