The Armed Forces (Court Martial) Rules 2009

PART 4 U.K. MEMBERS OF THE COURT

Proceedings without lay members U.K.

27.—(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 sentencing proceedings where every offender who falls to be sentenced is either—

(a) a civilian offender for the purposes of Part 1 of Schedule 3 to the 2006 Act; or

(b) an offender to whom Part 2 of that Schedule (ex-servicemen etc) applies, and who was convicted of every offence for which he falls to be sentenced either—

(i) in trial proceedings for which no lay member was subject to service law; or

(ii) on a guilty plea, where the court administration officer had previously notified him in writing that, if trial proceedings were required, none of the lay members would be subject to service law.

(4) This rule applies to variation proceedings if—

(a) it applied to the proceedings in which the sentence that falls to be varied was imposed; or

(b) a direction is given under rule 120.

(5) This rule applies to activation proceedings if—

(a) the original sentence was imposed by the court, and this rule applied to the proceedings in which it was imposed; or

(b) the original sentence was imposed by the Service Civilian Court.

(6) This rule applies to ancillary proceedings.

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

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

(a) the power to try a defendant or appellant; and

(b) the power—

(i) to sentence an offender,

(ii) to vary a sentence, or

(iii) to make an activation order,

otherwise than in proceedings to which rule 27 applies.

Proceedings requiring at least five lay members U.K.

29.—(1) For proceedings to which this rule applies, the number of lay members shall be at least five.

(2) This rule applies to trial proceedings if—

(a) any defendant is charged with an offence listed in Schedule 2 to the 2006 Act;

(b) any defendant is aged 18 or over at the commencement of the proceedings and is charged with an offence for which he could, if convicted, be sentenced to more than seven years' imprisonment; or

(c) any defendant is aged under 18 at the commencement of the proceedings and is charged with an offence for which he could, if convicted while under the age of 18, be sentenced to more than seven years' detention under section 209.

(3) This rule applies to sentencing proceedings if any offender falls to be sentenced for—

(a) an offence listed in Schedule 2 to the 2006 Act; or

(b) an offence for which he could be sentenced to more than seven years' imprisonment or more than seven years' detention under section 209.

(4) This rule applies to variation proceedings if it applied to the proceedings in which the sentence that falls to be varied was imposed.

Additional lay members U.K.

30.—(1) Subject to the provisions of this rule, a judge advocate may direct—

(a) that the number of lay members specified for any trial, sentencing or variation proceedings to which rule 29 (proceedings requiring at least five lay members) applies is to be either six or seven, as he may direct; or

(b) that the number of lay members specified for—

(i) any other trial, sentencing or variation proceedings, or

(ii) any appellate proceedings,

is to be either four or five, as he may direct.

(2) A judge advocate may not give a direction under this rule in relation to trial or appellate proceedings unless he considers it necessary to do so, having regard to the expected length and location of the proceedings.

(3) Without prejudice to paragraph (2), a judge advocate may not give a direction under this rule in relation to trial or appellate proceedings unless—

(a) in his opinion the proceedings are likely to last more than ten court days; or

(b) the proceedings are to be held outside the United Kingdom and Germany and in his opinion are likely to last more than five court days.

(4) A direction under this rule may not be given after the commencement of the proceedings to which it relates unless—

(a) such a direction was given before the commencement of the proceedings;

(b) one or more lay members have been discharged under rule 35(4) (objections); and

(c) the number of lay members remaining (including any waiting members) is equal to the minimum number.

(5) A judge advocate may rescind a direction given under this rule at any time before the commencement of the proceedings to which it relates.

Warrant officers U.K.

31.—(1) For any proceedings with lay members where every person to whom the proceedings relate is of or below the rank or rate of warrant officer, the number prescribed for the purposes of section 155(3) (that is to say, the number of lay members who may be warrant officers rather than officers) is two.

(2) For any proceedings with lay members where any person to whom the proceedings relate is an officer subject to service law, every lay member must be an officer qualified for membership under section 156 and not ineligible by virtue of section 157 or rule 32; and section 155(3) shall not apply in relation to any such proceedings.

Persons ineligible for membership in particular circumstances U.K.

32.—(1) A person is ineligible for membership of the court for any trial proceedings if, at any time since the date of the commission of any offence charged, he and any defendant were serving in the same unit.

(2) A person is ineligible for membership of the court for any sentencing proceedings if, at any time since the date of the commission of any offence for which an offender falls to be sentenced, he and the offender were serving in the same unit.

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

(4) A person is ineligible for membership of the court for any appellate proceedings if at any time since the date of the commission of any offence to which the proceedings relate he and any appellant were serving in the same unit.

(5) A person is ineligible for membership of the court for any activation proceedings if at any time since the date of the commission of the offence for which the original sentence was passed he and the offender were serving in the same unit.

(6) A person is ineligible for membership of the court for any proceedings if he was a member of the court for any previous proceedings to which any person to whom the proceedings relate was a party; but this is subject to paragraphs (7) to (9).

(7) A person is not ineligible for membership of the court for sentencing proceedings by virtue of having been a member of the court for any trial or appellate proceedings in which any offender was convicted of any offence for which he falls to be sentenced.

(8) 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 trial or appellate proceedings in which the offender was convicted of any offence for which the sentence that falls to be varied was imposed; or

(b) the proceedings in which that sentence was imposed.

(9) For the purposes of paragraph (6) 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 25(2) by virtue of sub-paragraph (b) of that paragraph (successful objections exceeding the number of waiting members).

(10) In relation to a person who at any time was not subject to service law, references in this rule to a unit in which the person was at that time serving are to be read as references to a unit to which he was at that time attached.

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

Civilians U.K.

33.—(1) For proceedings to which this rule applies, each of the lay members must be either—

(a) a person not subject to service law who is qualified for membership under paragraph (2) and not ineligible by virtue of rule 32; or

(b) an officer or warrant officer who would be qualified for membership under section 156, and not ineligible by virtue of section 157 or rule 32, if this rule did not apply;

and section 155(3) shall not apply in relation to the proceedings.

(2) For proceedings to which this rule applies, a person not subject to service law is qualified for membership of the court unless—

(a) he is aged under 18, or has reached the age of 70, at the commencement of the proceedings;

(b) he is not a United Kingdom national;

(c) he is a mentally disordered person;

(d) he is disqualified for jury service;

(e) he is a member of the Military Court Service; or

(f) he is on the staff of the Service Prosecuting Authority.

(3) In paragraph (2), “United Kingdom national” has the same meaning as in paragraph 11 of Schedule 15 to the 2006 Act.

(4) For the purposes of paragraph (2)—

(a) a person is a mentally disordered person if he is one of those listed in Part 1 of Schedule 1 to the Juries Act 1974 M1 ; and

(b) a person is disqualified for jury service if he is one of those listed in Part 2 of that Schedule.

(5) This rule applies to—

(a) trial proceedings, if any defendant is not subject to service law at the commencement of the proceedings;

(b) sentencing proceedings with lay members, if any offender who falls to be sentenced was not subject to service law when convicted;

(c) variation proceedings with lay members, if this rule applied to the sentencing proceedings in which the sentence that falls to be varied was imposed;

(d) appellate proceedings; and

(e) activation proceedings with lay members, if the offender is not subject to service law at the commencement of the proceedings.

(6) Where this rule applies to any proceedings and any person to whom the proceedings relate is an officer not subject to service law, paragraph (1) has effect as if the words “or warrant officer” in sub-paragraph (b) were omitted.

Marginal Citations

M1 1974 c. 23. Schedule 1 to the Juries Act 1974 is substituted by section 321 of, and paragraphs 1 and 15 of Schedule 33 to, the Criminal Justice Act 2003.

The president of the board U.K.

34.—(1) For proceedings to which this rule applies, at least one lay member must be an officer who is qualified to be the president of the board.

(2) This rule applies to any proceedings with lay members, except proceedings for which (by virtue of rule 33) no lay member is subject to service law.

(3) An officer is qualified to be the president of the board if—

(a) he is of or above the rank of lieutenant commander, major or squadron leader;

(b) he is subject to service law; and

(c) where any person to whom the proceedings relate is subject to service law, he is of superior rank to every such person.

(4) For the purposes of paragraph (3)(c) an officer is of superior rank to a person to whom the proceedings relate if—

(a) that person is of or above the rank of commodore, brigadier or air commodore; and

(b) the officer holds the same rank as that person, or an equal rank, but is senior to him within that rank.

(5) In paragraphs (3) and (4), “rank” means substantive rank.

(6) Where one lay member is qualified to be the president of the board, he shall be the president of the board.

(7) Where two or more lay members are so qualified, the most senior of them shall be the president of the board.

(8) Paragraph (9) applies where—

(a) the president of the board is discharged under rule 35(4) (objections);

(b) the proceedings are not terminated under rule 25(2) (lay members reduced below minimum number);

(c) no other lay member is qualified to be the president of the board; and

(d) no waiting member is so qualified.

(9) Where this paragraph applies—

(a) the proceedings shall be adjourned;

(b) the court administration officer shall specify as a lay member another officer who is qualified to be the president of the board;

(c) that officer shall be the president of the board; and

(d) rule 35 (objections) shall apply on the resumption of the proceedings as it applies on the commencement of the proceedings.

(10) Notwithstanding anything in this rule, in any proceedings with lay members the judge advocate shall preside over the court.

Objections to lay members U.K.

35.—(1) At the commencement of any proceedings to which this rule applies, 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.

(5) This rule applies to any proceedings with lay members except—

(a) sentencing proceedings, where every offender who falls to be sentenced was convicted in trial or appellate proceedings of at least one offence for which he falls to be sentenced; and

(b) variation proceedings.

Waiting members U.K.

36.—(1) When the court administration officer specifies the lay members for any proceedings to which rule 35 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 35(4).

(2) Where a lay member is discharged under rule 35(4), and rule 34(9) (no member qualified to be president of the board) does not apply, 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,

(b) two lay members are discharged under rule 35(4), and

(c) rule 34(9) does not apply,

both the waiting members shall become lay members.

(7) Rule 35(2) to (4) (objections) apply in relation to a waiting member who becomes a lay member by virtue of this rule.

Swearing of lay members U.K.

37.  At the commencement of any proceedings to which rule 35 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.

38.  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.