The Armed Forces (Court Martial) Rules 2009

Explanatory Note

(This note is not part of the Rules)

The Armed Forces Act 2006 (c. 52) (“the Act”) creates a standing Court Martial. These Rules provide for the constitution and procedure of the court, including rules of evidence and powers to bring persons before the court. Additionally the Rules modify the powers of the Director of Service Prosecutions, the Court Martial and the Court Martial Appeal Court in a case in which a defendant elected Court Martial trial (or a court-martial if the election occurred before commencement).

Part 2 of these Rules makes provision with regard to the service of documents on different people and sets out when service is deemed to have occurred depending upon the method of service.

Part 3 deals with administrative matters including listing and notification of proceedings (rules 16 and 17), providing that a judge advocate may direct attendance at court by live link (rule 18) and the making and retention of records of proceedings (rule 23). Rule 21 provides that oaths taken at the Court Martial are to be the same as those in sections 1 to 3 and 6 of the Oaths Act 1978 (c. 19) as modified by Schedule 1 to these Rules. Rule 25 sets out the circumstances in which a judge advocate must terminate proceedings including: when the president of the board for any proceedings dies or is unable to continue to attend the proceedings and no other lay member is qualified to take his place; or if the number of lay members at any proceedings falls below the required minimum for those proceedings.

Part 4 deals with court membership including: when a judge advocate is to sit alone, such as when the offender who is to be sentenced is a civilian who will be awarded a sentence under Part 1 of Schedule 3 to the Act or is an ex-serviceman who either was tried by a court where all of the lay members were civilians, or who would have been tried by all civilian lay members had he not pleaded guilty (rule 27); the proceedings when the court must comprise a judge advocate and lay members, such as for a trial of a defendant (rule 28); that the minimum number of lay members must be five when the defendant is charged with an offence set out in Schedule 2 to the Act or an offence that can attract more than 7 years' imprisonment or detention (depending upon the age of the defendant) (rule 29); those circumstances in which the judge advocate may direct that up to two additional lay members are added to the court (rule 30); when the lay members are to be civilians (rule 33); and who may be the president of the board (rule 34).

Part 5 sets out who may be a legal representative at court (rule 39) and provides, when a defendant who is a young person has not appointed a legal representative, which rights of the defendant may be exercised by the parent or guardian of that defendant (rule 40).

Part 6 applies section 111 of the Act (power to arrest a defendant during proceedings of the court) to pre-arraignment where a defendant is to be tried by the court. A judge advocate may either direct his arrest or issue a warrant for his arrest under this part.

Part 7 provides for service of advance information and when that information must include notice that a defendant could become subject to an activation order (rule 44).

Part 8 makes provision with regard to preliminary hearings including the power of a judge advocate to make orders or rulings on matters such as the admissibility of evidence, joinder or severance of charges and other questions of law, practice or procedure (rule 49). Rule 50 provides for appeals from such orders or rulings to the Court Martial Appeal Court.

Part 9 provides for the joinder or severance of charges and the amendment of charges.

Part 10 deals with arraignment of defendants and the ability of defendants to change their pleas.

Part 11 is concerned with the attendance of witnesses at court and provides for matters such as the notification of witnesses (rule 62), summonsing of witnesses (rules 63 to 67) and the powers of a judge advocate to issue warrants for the arrest of witnesses in order to secure their attendance at court (rule 68).

Part 12 deals with evidence and applies provisions that operate in the civilian courts. This part is divided into chapters that in their turn deal with: general evidential matters (chapter 1) (applying provisions of the Criminal Justice Act 1967 (c. 80) to the Court Martial); evidence of bad character (chapter 2) (procedural provision in respect of provisions of the Criminal Justice Act 2003 (c. 44) which apply to the Court Martial); hearsay evidence (chapter 3) (procedural provision in respect of further provisions of the 2003 Act which apply to the court); evidence of service matters (chapter 4) (which is equivalent to provisions made under section 372 of the Act for civilian courts); expert evidence (chapter 5); and special measures directions (chapter 6) (applying provisions of the Youth Justice and Criminal Evidence Act 1999 (c. 23) to the Court Martial).

Part 13 sets out the procedure to be followed at trial and follows procedures in the Crown Court.

Part 14 is concerned with sentencing matters and procedure. Ordinarily sentencing is an exercise conducted jointly by the judge advocate and lay members at the Court Martial and rule 117 provides that the reasons for a sentence are explained to the offender by the judge advocate but that pronouncement of sentence is by the president of the board. The president of the board may also, with the leave of the judge advocate, make a statement that explains to the offender the effects of his offending on his service and the likely effects it will have on his own service career.

Part 15 provides for the variation of a sentence including when the judge advocate can hold variation proceedings in the absence of the lay members (rule 120) and that lay members may attend variation proceedings by live link (rule 121).

Appeals from the Service Civilian Court are heard by the Court Martial. Part 16 provides for procedural matters in relation to appeals including: seeking leave to appeal out of time (rule 127); when the court may treat an appeal as abandoned (rule 129); and how the Rules are to apply to appellate proceedings (rule 128) (for example, references in the Rules to “trial proceedings” should be read as “appellate proceedings”).

Part 17 deals with activation proceedings of suspended sentences passed in relation to an earlier offence when a new offence has been committed during the operational period of that suspended sentence.

Part 18 is concerned with ancillary proceedings. Chapter 1 applies when an overseas community order made by the court is in force and the offender has breached the terms of that order. Chapter 2 deals with other ancillary proceedings such as reviewing a service compensation order (rule 145), applying for time to pay a financial penalty (rule 146), remitting a fine (rule 147), etc. It also provides for the procedure to be followed when the court decides to exercise its powers under section 311(2) of the Act and certify a person for contempt of court (rule 151).

Part 19 sets out the power of a judge advocate to order that proceedings are held in camera, including on the basis that the proceedings might otherwise be abandoned lest information useful to an enemy may be disclosed or national security endangered (rule 152). Rule 154 provides for appeals to the Court Martial Appeal Court against such an order.

Part 20 provides that where a person elects for trial by the Court Martial the powers of sentencing of the court are capped at those that would have been available to the defendant's commanding officer had the commanding officer found the charge proved at a summary hearing. The detail of Part 20 is concerned with establishing when a charge is relevant for the purposes of imposing such a cap, the way in which the court is to pass sentence for multiple relevant offences where the commanding officer would have passed a single sentence, and the powers of the Court Martial Appeal Court in such a case. This part supplements section 165 of the Act.

Part 21 makes transitory and transitional provisions. Rule 167 provides that until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005 (c. 4) is in force all references in the Rules to the Court of Judicature of Northern Ireland are to be read as references to the Supreme Court of Northern Ireland. Rule 168 introduces Schedule 2 which sets out transitional provisions.