Armed Forces Act 2011

Armed Forces Act 2011

2011 CHAPTER 18

Commentary on the Schedules

Schedule 2 – Judge advocates sitting in civilian courts

139. Paragraph 1 of Schedule 2 amends section 8 of the Senior Courts Act 1981 to provide for a “qualifying judge advocate” to be able to exercise the jurisdiction of the Crown Court in relation to any criminal cause or matter other than an appeal from a youth court, including when sitting with not more than four justices of the peace. The definition of a “qualifying judge advocate” is provided for by paragraph 5 (see note on that paragraph below).

140. Paragraph 2 amends section 73(2) of the Senior Courts Act 1981 to provide for a power for rules of court to authorise or require a qualifying judge advocate to continue with any proceedings with a court where one or more of the justices initially constituting the court has withdrawn, or is absent for any reason. Paragraph 2 also amends section 73(3) of the Senior Courts Act 1981 to provide that a qualifying judge advocate sitting as a judge of the Crown Court with justices of the peace shall preside and so that, if the members of the court are equally divided on a decision, the qualifying judge advocate shall have a second and casting vote.

141. Paragraph 3 amends section 74(1) of the Senior Courts Act 1981 by adding a qualifying judge advocate to the list of judges who, subject to the other provisions of section 74, shall sit with not less than two nor more than four justices of the peace where the Crown Court is to hear any appeal. Section 74(3) provides so that rules of court may authorise or require specified judges in certain circumstances, to enter on, or continue with, any proceedings, although the court does not comprise the justices required by subsections (1) and (2). Paragraph 3 also amends section 74(3) so that the rules of court can apply to qualifying judge advocates.

142. Section 75(1) of the Senior Courts Act 1981 provides for the allocation of cases to judges and other matters relating to the distribution of Crown Court business to be determined in accordance with directions given by or on behalf of the Lord Chief Justice with the concurrence of the Lord Chancellor. Section 75(1) is amended by paragraph 4 of the Schedule to include qualifying judge advocates in the list of judges referred to in the subsection.

143. Paragraph 5 defines “qualifying judge advocate” to mean the Judge Advocate General, or a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 as the Vice Judge Advocate General or as an Assistant Judge Advocate General. This is inserted by paragraph 5 into section 151(1) of the Senior Courts Act 1981.

144. Paragraph 6 adds new subsection (2A) to section 66 of Courts Act 2003. The new subsection provides that a qualifying judge advocate has the powers of a justice of the peace who is a District Judge (Magistrates’ Courts) in relation to criminal causes and matters. Paragraph 6 also inserts into section 66 a definition of “qualifying judge advocate” in the same terms as the definition inserted into section 151(1) of the Senior Courts Act 1981 (see the note on paragraph 5 above).

145. Paragraphs 7 and 8 amend section 9(5) of the Criminal Justice Act 1967 to include a qualifying judge advocate in the list of judges who may sit alone to hear an application under section 9(4)(b) of that Act. An application under section 9(4)(b) is for a person to be required to attend court to give evidence (notwithstanding that the person has provided a written statement which may be admissible in evidence under section 9). However, qualifying judge advocates will only be able to hear such an application where it has been made to the Crown Court. The amendments made to section 9(5) by paragraphs 7 and 8 are alternatives; which of them has effect depends on whether amendments made to section 9(5) by the Courts Act 2003 have come into force before paragraph 1 of this Schedule is commenced. Paragraph 7 applies if the amendments to section 9(5) have come into force before the commencement of paragraph 1.

146. Paragraphs 9 and 10 amend section 9B(3) of the Juries Act 1974 to include a qualifying judge advocate in the list of judges who may determine whether a juror is to be discharged on account of physical disability. However, qualifying judge advocates will only be able to make such a determination where the juror has been summoned to attend jury service at the Crown Court. Again, paragraphs 9 and 10 contain alternative sets of amendments; which set has effect depends on the commencement of amendments made to section 9B(3) by the Courts Act 2003.

147. Paragraph 11 amends Schedule 1 to the Police and Criminal Evidence Act 1984 to include a qualifying judge advocate in the list of judges who may hear an application by a police constable to obtain access to excluded or special procedure material.