Chapter 1 – Jurisdiction
131.This Chapter describes the charges that the Court Martial, the SCC and a CO can hear.
Court Martial
Section 50: Jurisdiction of the Court Martial
132.This section provides that the Court Martial can try any service offence, and defines a “service offence”.
Service Civilian Court
Section 51: Jurisdiction of the Service Civilian Court
133.Section 277 establishes the SCC. Section 51 sets out the offences as respects which the court has jurisdiction. The court replaces the Standing Civilian Courts that were created by the Armed Forces Act 1976. Essentially the SCC has the same jurisdiction as that of its predecessors, which is in turn similar to the jurisdiction exercised by a magistrates’ court in England and Wales.
134.The court may try any service offence (as defined in section 50) committed outside the British Islands by a civilian who was subject to service discipline at the time of the offence, unless a listed exception applies. The most significant exception in relation to an adult is any offence which under the law of England and Wales can be tried only on indictment, that is, only by the Crown Court. However, in relation to juveniles the SCC has the power (akin to that of a youth court in England and Wales) to try offences that in relation to an adult would be indictable only, apart from the listed homicide and firearms offences.
Commanding officers
Section 52: Charges capable of being heard summarily
135.This section defines what is meant by references in the Act to a charge which is capable of being heard summarily. A charge falls within this category if all the conditions in subsections (2) to (4) are satisfied.
136.Condition A is that the offence charged must be an offence that may be dealt with at summary hearing (i.e. one of those listed in section 53).
137.Condition B prevents a charge from being heard summarily if the accused is an officer above the rank of commander, lieutenant-colonel or wing commander, or a civilian.
138.Condition C relates to the accused’s membership of a force (or, in some cases, his liability to recall). In most cases the accused must be subject to service law, or a volunteer reservist or an ex-regular reservist subject to an additional duties commitment, throughout the period between the commission of the offence and the completion of the summary hearing. If the charge is one of absence without leave on the part of a reservist, however, it is sufficient that the accused has been a reservist (whether volunteer or ex-regular) throughout that period. If the charge is one of absence without leave on the part of an ex-regular who is not a reservist but is liable to recall, the accused must either be liable to recall or a member of the regular forces (i.e. actually recalled) throughout that period.
Section 53: Offences that may be dealt with at a summary hearing
139.This section details those offences that may be heard summarily. It makes it clear that where a criminal conduct offence may be heard summarily an offence of attempting to commit the substantive offence may also be dealt with at a summary hearing.
140.With regard to criminal conduct offences, this section makes it clear that only those offences that are listed in Schedule 1 may be dealt with at a summary hearing. The Secretary of State is given the power to amend Schedule 1 by order made by statutory instrument (subject to the “affirmative resolution” procedure which requires the order to be laid in draft before both Houses of Parliament and be approved by resolution of each House).
Section 54: Charges which may be heard summarily only with permission or by senior officer
141.This section prevents a CO who is below the rank of rear admiral, major-general or air vice-marshal from hearing a charge of a criminal conduct offence listed in Part 2 of Schedule 1 (or an attempt to commit such an offence) without the permission of higher authority.