PART 6Retrial
Retrial19
1
Where a person is tried pursuant to an order under article 9(1)(a), the trial must be on a charge specified in a direction of the Court Martial Appeal Court.
2
After the end of 2 months after the date of the order, the person may not be arraigned on a charge in pursuance of such a direction unless the Court Martial Appeal Court gives leave.
3
Where paragraph (2) applies, a prosecuting officer may apply for leave under that paragraph in the form set out as Form 5 in Schedule 2.
4
An application under paragraph (3) must be served on the registrar and the acquitted person.
5
The court must not give leave unless satisfied that—
a
the Service Prosecuting Authority has acted with due expedition; and
b
there is a good and sufficient cause for trial despite the lapse of time since the order under article 9(1)(a).
6
Where the person may not be arraigned without leave, he may apply to the court—
a
in the form set out as Form 5 in Schedule 2 to set aside the order; and
b
for any direction required for restoring an earlier judgment and verdict of acquittal of the qualifying offence.
7
An application under paragraph (6) must be served on the registrar and the prosecuting officer.
8
Evidence given at a trial pursuant to an order under article 9(1)(a) must be given orally if it was given orally at the original trial, unless—
a
all the parties to the trial agree otherwise;
b
section 116 of the 2003 Act applies; or
c
the witness is unavailable to give evidence, otherwise than as mentioned in subsection (2) of that section, and section 114(1)(d) of that Act applies.
9
For the purposes of rules made under section 163 of the 2006 Act (Court Martial rules) a trial pursuant to an order under article 9(1)(a) is to be treated as trial proceedings.