Armed Forces Discipline Act 2000

Section 13.

SCHEDULE 2 E+W+S+N.I. Functions of prosecuting authority

General functions of prosecuting authority E+W+S+N.I.

1 (1) In section 83B of each of the 1955 Acts (functions of the prosecuting authority), in subsection (2), for the words from “to record” to the end there is substituted “ to deal summarily with the preliminary charge ”. E+W+S+N.I.

(2) In subsection (3) of that section, for the words from “for which” to the end there is substituted “ which would have been dealt with summarily had the accused not elected court-martial trial ”.

(3) In subsection (4) of that section—

(a) in paragraph (a), for “subsection (5) below)” there is inserted “ subsection (5) below and section 83BB of this Act) ”, and

(b) in paragraph (b), at the beginning there is inserted “ (subject to section 83BB of this Act) ”.

(4) After subsection (9) of that section there is inserted—

“(9A) If the case has been referred to the prosecuting authority as a result of an election for court-martial trial, the prosecuting authority may not—

(a) determine under subsection (4)(a) above that a charge different from that in respect of which the election was made is to be preferred, or

(b) exercise any power mentioned in subsection (8)(a) or (b) above in relation to any charge against the accused before the commencement of the trial,

unless the accused has given his written consent or the charge is being referred under section 83BB of this Act.”

(5) For subsection (13) of that section there is substituted—

“(13) If the prosecuting authority—

(a) decides not to prefer any charge referred to him, or

(b) before the commencement of the trial of any charge preferred by him, discontinues proceedings on that charge,

he may direct that, for the purposes of section 134 of this Act, the accused is to be deemed to have been tried by court-martial for the offence charged.”

2 (1) In section 52I of the 1957 Act (functions of prosecuting authority), in subsection (4) after “and” there is inserted “ (subject to section 52II of this Act) ”. E+W+S+N.I.

(2) After subsection (8) of that section there is inserted—

“(8A) If the case has been referred to the prosecuting authority as a result of an election for court-martial trial, the prosecuting authority may not—

(a) determine under subsection (4) above that a charge different from that in respect of which the election was made is to be preferred, or

(b) exercise any power mentioned in subsection (7)(a) or (b) above in relation to any charge against the accused before the commencement of the trial,

unless the accused has given his written consent or the charge is being referred under section 52II of this Act.”

(3) For subsection (12) of that section there is substituted—

“(12) If the prosecuting authority—

(a) decides not to prefer any charge referred to him, or

(b) before the commencement of the trial of any charge preferred by him, discontinues proceedings on that charge,

he may direct that the accused shall not be liable to be tried summarily or by court-martial for the offence charged.”

Cases where charge may be referred back to commanding officer E+W+S+N.I.

3 After section 83B of each of the 1955 Acts there is inserted— E+W+S+N.I.

“83BB Cases where charge may be referred back to commanding officer.

(1) Where—

(a) a case has been referred to the prosecuting authority as a result of an election for court-martial trial, and

(b) the prosecuting authority considers that a charge different from, or additional to, the preliminary charge should be preferred,

the prosecuting authority may refer back to the commanding officer of the accused the charge or charges which the prosecuting authority considers should be preferred.

(2) In subsection (1) above—

(a) “the preliminary charge” means the charge which would have been dealt with summarily had the accused not elected court-martial trial, and

(b) the reference to preferring a charge different from, or additional to, the preliminary charge includes a reference to amending, or substituting another charge for, a charge already preferred.

(3) Where a charge is referred to a commanding officer under subsection (1) above, the commanding officer shall deal with the charge as if it had been reported to him under section 76(1) of this Act.”

4 After section 52I of the 1957 Act there is inserted— E+W+S+N.I.

“52II Cases where charge may be referred back to commanding officer.

(1) Where—

(a) a case has been referred to the prosecuting authority as a result of an election for court-martial trial, and

(b) the prosecuting authority considers that a charge different from, or additional to, the preliminary charge should be preferred,

the prosecuting authority may refer back to the commanding officer of the accused the charge or charges which the prosecuting authority considers should be preferred.

(2) In subsection (1) above—

(a) “the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial, and

(b) the reference to preferring a charge different from, or additional to, the preliminary charge includes a reference to amending, or substituting another charge for, a charge already preferred.

(3) Where a charge is referred to a commanding officer under subsection (1) above, the commanding officer shall deal with the charge as if it had been reported to him under section 52B(1) of this Act.”

Power to make provision for cases where election relates to two or more charges E+W+S+N.I.

5 In section 103 of each the 1955 Acts (rules), after subsection (3) there is inserted— E+W+S+N.I.

“(3A) Rules under this section may make provision as to the application of sections 83B and 83BB of this Act in relation to cases where an election for court-martial trial relates to two or more charges.”

6 In section 58 of the 1957 Act (rules), after subsection (3) there is inserted— E+W+S+N.I.

“(3A) Rules under this section may make provision as to the application of sections 52I and 52II of this Act in relation to cases where an election for court-martial trial relates to two or more charges.”