The Armed Forces (Court Martial) Rules 2009

PART 15 U.K. VARIATION PROCEEDINGS

Power to vary sentence U.K.

118.—(1) In proceedings under this Part (“variation proceedings”), the court may vary a sentence imposed by it within the period of 56 days beginning with the day on which the sentence was imposed.

(2) The power conferred by this rule may not be exercised in relation to any sentence if an appeal, or an application for leave to appeal, against the sentence has been determined.

(3) A sentence varied under this rule shall take effect, as so varied, from the beginning of the day on which it was originally imposed, unless the court otherwise directs.

(4) In this rule—

(a) references to a sentence include any order made, or direction given, by the court when dealing with an offender; and

(b) references to the variation of a sentence include the variation or rescission of such an order or direction.

Direction that variation proceedings be held U.K.

119.—(1) Variation proceedings may be held only in accordance with a direction given under this rule.

(2) After the conclusion of any proceedings in which a sentence was imposed, the judge advocate for those proceedings may direct the court administration officer to appoint a time and place for variation proceedings in respect of the sentence.

(3) The judge advocate may give a direction under this rule—

(a) on the application of the Director or the offender; or

(b) of his own motion.

(4) An application for a direction under this rule—

(a) must be made in writing to the court administration officer, stating the grounds on which it is made;

(b) if made by the Director, must be served on the offender; and

(c) if made by the offender, must be served on the Director.

(5) Where the judge advocate dismisses an application for a direction under this rule, the court administration officer shall notify the Director and the offender of that fact.

Direction that variation proceedings be held without lay members U.K.

120.—(1) Where a judge advocate directs under rule 119 that variation proceedings are to be held, he may direct that there are to be no lay members.

(2) A judge advocate may not give a direction under this rule unless satisfied that conditions A and B are met.

(3) Condition A is that one or more of the original lay members could not, without substantial inconvenience, attend the proceedings at the time and place appointed.

(4) Condition B is that, if—

(a) the proceedings were postponed until the earliest time at which the judge advocate, the original lay members and the offender could, without substantial inconvenience, attend the proceedings (whether at the place originally appointed or any other place), and

(b) the sentence were then varied in the way in which it would be most likely to be varied if no direction were given under this rule and the original lay members were specified for the proceedings and could attend,

the offender would be unfairly prejudiced by the postponement.

(5) In this rule—

(a) any reference to the attendance of the original lay members includes their attendance by live link, as defined by rule 121(2) (and for this purpose it is to be assumed that they have been or would be specified as lay members for the variation proceedings); and

(b) any reference to the attendance of the offender includes his attendance by live link, as defined by rule 18(3).

(6) Where a direction (“the original direction”) was given under rule 30 (additional lay members) in relation to the sentencing proceedings, it is to be assumed for the purposes of paragraph (4)(b) that—

(a) a direction would also be given under rule 30 in relation to the variation proceedings; and

(b) the number of lay members specified in that direction would be the same as that specified in the original direction.

(7) In this rule—

“inconvenience” includes expense, and adverse effect on the operational effectiveness of any of Her Majesty's forces;

“the original lay members” means the persons who, at the time when the sentence that falls to be varied was imposed, were lay members for the sentencing proceedings;

“the sentencing proceedings” means the proceedings in which the sentence that falls to be varied was imposed.

Attendance of lay members by live link U.K.

121.—(1) A lay member may attend variation proceedings by live link.

(2) In this rule, “live link” means an arrangement by which a lay member, when not in the place where proceedings are being held, is able to see and hear, and to be seen and heard by, the other members of the court during the proceedings (and for this purpose any impairment of eyesight or hearing is to be disregarded).

Decision on variation of sentence U.K.

122.  In the case of an equality of votes on whether the sentence should be varied, and if so how, the judge advocate has a casting vote.

Announcement of sentence as varied U.K.

123.  Where the court varies the sentence, sections 252 and 253(2) (duty to give reasons and explain sentence) and rule 117 (announcement of sentence) shall apply as they apply to the passing of a sentence.

Power to order offender's release from custody U.K.

124.—(1) This rule applies where an offender is in custody by virtue of a custodial sentence or a sentence of service detention imposed by the court.

(2) If it appears to the judge advocate, within the period of 56 days beginning with the day on which the sentence was imposed—

(a) that the court had no power to impose such a sentence, or

(b) that the maximum term for which the court had power to impose such a sentence has expired,

the judge advocate may order that the offender be immediately released.

(3) The power conferred by this rule may not be exercised in relation to any sentence if an appeal, or an application for leave to appeal, against the sentence has been determined.

(4) This rule is without prejudice to any other provision of this Part.