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Armed Forces Act 2006

Chapter 2 – Charging and Mode of Trial

257.Chapter 2 deals with the powers of COs and of the DSP to decide what charges, if any, are to be brought. It also provides for the powers of COs in relation to cases allocated to them for summary hearing and of the DSP in relation to cases allocated for trial by the Court Martial or the SCC.

Powers of charging etc
Section 119: Circumstances in which CO has power to charge

258.This section specifies the circumstances in which a CO has “initial powers” (specified in section 120) in relation to a case. He has these powers if he becomes aware of anything indicating that someone in his command may have committed a service offence, unless broadly speaking the service police should be involved (under section 113 or 114), are already involved or (in the CO’s view) are likely to be involved by another police force.

259.The CO also has initial powers where a case is referred to him either by a service policeman under section 116 or by the DSP under section 121.

Section 120: Power of CO to charge etc

260.This section provides that the initial powers of a CO in respect of a case are to bring charges (but only charges which can be heard summarily under the Act) or to refer the case to the DSP. The charges capable of being heard summarily are defined in section 52. Two effects of that definition are that a CO has no power under this section to charge an officer above the rank of lieutenant-colonel (or equivalent rank in the Royal Navy or RAF), and no such power to charge a civilian subject to service discipline.

261.One effect of sections 119 and 120 taken together is that a CO cannot use initial powers to bring charges where the service police are, or should be, aware of the case, unless the case has been referred to the CO either by the service police or the DSP.

262.The section also empowers the Secretary of State to provide by regulations for circumstances in which, where a CO refers one case to the DSP, linked cases must also be treated as referred to the DSP.

263.Where a CO brings charges under this section, they are referred to in the Act as “allocated for summary hearing”.

Section 121: Power of DSP to direct bringing of charge etc

264.This section gives powers to the DSP where he has had a case referred to him by a service policeman (under section 116) or by a CO (under section 120). The powers are:

  • to direct a CO to bring specified charges

  • where he gives such a direction, to allocate the case for trial by the SCC if that court has jurisdiction

  • where he decides it would not be appropriate to give such a direction, to refer the case to the CO (in which event, under section 119 the CO has initial powers in relation to the case)

  • to give a direction (under section 127) barring further proceedings for an offence to which the case relates.

Section 122: Charges brought at direction of DSP

265.This section provides that a CO must bring any charge which he is directed to bring by the DSP under section 121. Unless the DSP allocates the charge to the SCC, the charge is to be regarded as allocated for trial by the Court Martial.

Powers of commanding officer or DSP after charge etc
Section 123: Powers of CO after charge

266.Where under his initial powers under section 120 a CO charges a person with an offence triable summarily, this section gives the CO certain powers in relation to the charge.

267.The powers are to amend the charge, substitute another charge, bring an additional charge, discontinue proceedings or refer the charge to the DSP. But the charges must still be ones capable of summary hearing, and any additional charge must relate to the same case. The powers may be exercised before or after the start of a summary hearing. The amended, substituted or additional charge is then regarded as “allocated for summary hearing”.

Section 124: CO to hear charge allocated for summary hearing

268.This section requires an accused’s CO to hear charges which are allocated for summary hearing. This duty ceases to apply to a charge, if the CO substitutes another charge, discontinues proceedings or refers the case to the DSP, or if the accused elects to be tried by the Court Martial. The duty also ceases to apply if either the charge ceases to meet the requirements of section 52 (requirements for charges to be capable of being heard summarily) or the permission of a senior officer (under section 54) is needed for summary hearing and that permission is not obtained.

Section 125: Powers of DSP in respect of charge allocated for Court Martial trial

269.This section gives the DSP certain powers where a case is allocated for Court Martial trial (under section 122). Some of the powers are broadly similar to those of a CO in respect of a charge allocated for summary hearing. These are powers to amend the charge, substitute another charge, bring an additional charge or discontinue proceedings. Any additional charge must relate to the same case. Any amended, substituted or additional charge is regarded as “allocated for Court Martial trial”, and so remains subject to the DSP’s powers under this section.

270.The DSP also has powers under this section:

  • to refer the charge back to the accused’s CO (if the charge can be heard summarily in accordance with section 52),

  • to allocate to the SCC a charge which that court can deal with, and

  • to give a direction (under section 127) barring further proceedings for an offence to which the case relates.

271.The section also gives a power for the making of Court Martial rules (by the Secretary of State under section 163) to restrict the exercise by the DSP of his powers under this section once an accused has been asked by the Court Martial how he pleads or where a charge is referred to the Court Martial by the SCC. Additionally the Court Martial Rules can make provision to restrict the court’s powers when it is dealing with a charge where the accused elected to be tried by the Court Martial. This power will ensure that the Court Martial is restricted in its sentencing powers to those that would be available to a CO if he had dealt with a charge summarily.

Section 126: Powers of DSP in respect of charge allocated for SCC trial

272.This section gives certain powers to the DSP where a case has been allocated for trial by the SCC. The powers are equivalent to some of those of the DSP under section 125 in relation to charges allocated for Court Martial trial. Accordingly the DSP has powers to amend the charge, substitute another charge, bring an additional charge or discontinue proceedings. Any additional charge must relate to the same case. Any amended, substituted or additional charge is regarded as “allocated for Service Civilian Court trial”, and so remains subject to the DSP’s powers under this section.

273.The DSP also has powers under this section:

  • to allocate the charge for trial by the Court Martial (e.g. if, on reflection, it is thought to be too serious for SCC trial) and

  • to give a direction (under section 127) barring further proceedings for an offence to which the case relates.

274.The section also gives a power for the making of SCC rules (by the Secretary of State under section 288) to restrict the exercise by the DSP of his powers under this section once the SCC has decided (under section 279) whether it should try the charge.

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