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Armed Forces Act 2001

Section 17: Summary dealing or trial and functions of the prosecuting authority

57.Section 17 introduces Schedule 1.

58.One of the main changes made by the Schedule is to the provisions for summary proceedings against officers. Most disciplinary matters in the armed forces are dealt with summarily by the accused’s commanding officer. The alternative is trial by court-martial. In the Army and RAF a case against an officer can only be dealt with summarily by an officer superior in rank to the commanding officer, known as an appropriate superior authority but, prior to this Act, officers in the Royal Navy could not be dealt with summarily at all. In the Army and RAF, only officers of ranks up to and including major/squadron leader could be dealt with summarily.

59.These limitations meant that, in the Royal Navy, court-martial trials were necessary for all offences alleged against officers, however minor the offence. A review of these procedures led to the changes in this Act, which will enable officers in the Royal Navy to be tried summarily. This applies to officers up to and including the rank of commander. To ensure that there is a degree of uniformity across the Services, the most senior ranks capable of being dealt with summarily in the Army and Royal Air Force will now be those Services' equivalents of commander, i.e. lieutenant colonel and wing commander respectively (paragraphs 1 and 5 of the Schedule).

60.Paragraphs 9 and 12 of the Schedule set out requirements as to the rank of any commanding officer or appropriate superior authority responsible for the summary trial of an officer in the Royal Navy. A commanding officer or appropriate superior authority hearing such a case is to be of the rank of commander or above and at least two ranks higher than the accused. The effect of paragraph 10 is that where these requirements are not met by the commanding officer, the case will be tried by an appropriate superior authority. Paragraph 13 amends the regulation-making power to allow further provision to be made about appropriate superior authorities.

61.The main effect of paragraph 11 is to give officers in the Royal Navy facing summary trial the right to elect to be tried by court-martial instead.

62.Elsewhere, the Schedule (particularly paragraphs 3, 7 and 14) closes a gap in the procedures. Previously, once a case was referred from the commanding officer and higher authority to the Service prosecuting authority, there was no statutory mechanism for the case to be referred back for disciplinary action if, in the view of the prosecuting authority, the case was unsuitable for trial by court-martial. The new provisions in this Schedule provide such a mechanism, which may be applied to part or all of a case. If a reference back is made, the commanding officer is then to consider the case afresh.

63.Schedule 1 (paragraphs 4, 8 and 15) also gives a power to the Service prosecuting authorities to advise police forces on all matters relating to offences under the SDAs. The Service prosecuting authorities perform functions akin to those of the Crown Prosecution Service (CPS), in deciding whether cases should be brought to trial and in being responsible for the conduct of prosecutions. The CPS also advises police forces on matters such as the evidence that will be needed to justify a particular charge. The CPS power is conferred by section 3(2)(e) of the Prosecution of Offences Act 1985. The new power of the Service prosecuting authorities provided by Schedule 1 is in very similar terms.

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