The Courts-Martial (Army) Rules 1997

PART I PRELIMINARY

Citation and commencement

1.  These Rules may be cited as the Courts-Martial (Army) Rules 1997 and shall come into force on 1st April 1997.

Interpretation

2.  In these Rules—

“the Act” means the Army Act 1955;

“commanding officer”, in relation to an accused, means such officer having powers of command over that person as may be determined by or under regulations of the Defence Council made under section 82(1) of the Act;

“commencement of the trial” shall be construed in accordance with rule 42;

“formal preliminary examination” shall be construed in accordance with rule 5;

“hearing for directions” shall be construed in accordance with rule 25;

“the judge advocate”—

(i)

in relation to a court-martial, means the judge advocate appointed by or on behalf of the Judge Advocate General to be a member of the court-martial;

(ii)

in relation to preliminary proceedings, means the judge advocate appointed by or on behalf of the Judge Advocate General to conduct any preliminary proceedings;

“preliminary proceedings” includes a hearing for directions and a preparatory hearing but does not include a formal preliminary examination;

“preparatory hearing” shall be construed in accordance with rule 29;

“pre-trial hearing” shall be construed in accordance with rule 37;

“the prosecutor” means the prosecuting authority or any prosecuting officer appointed by the prosecuting authority;

“prosecution papers” has the meaning assigned to it in rule 9; and

“special finding” shall be construed in accordance with rule 71.

Service on an accused

3.—(1) Unless the context otherwise requires, where under these Rules any document or notice is to be served on an accused by the court administration officer or the prosecutor, it may be served by sending it to the commanding officer of the accused.

(2) Where a document or notice is received by the commanding officer in accordance with paragraph (1) above, the commanding officer or a person on his behalf shall serve it on the accused as soon as is practicable.

PART II PROSECUTION OF OFFENCES

Referring a case to the prosecuting authority

4.  If the higher authority refers a case in respect of an accused to the prosecuting authority in accordance with section 76A(i) of the Act, he shall forward to the prosecuting authority—

(a) a copy of any report concerning the case prepared by the Royal Military Police or other investigator;

(b) any allegation reported to the commanding officer of the accused in the form of a charge under section 76(1) of the Act and details of any substitution or amendment of that charge under section 76(3) of the Act;

(c) a list of any potential witnesses;

(d) any written statements or written record of evidence of the potential witnesses;

(e) any statements made by the accused including records or transcripts of interviews conducted under caution;

(f) a list of any exhibits;

(g) a copy of any conduct sheets of the accused;

(h) any other information in the possession of the higher authority which may be material to the prosecutor’s consideration of the institution of proceedings.

Formal preliminary examination

5.—(1) Where a case in respect of an accused has been forwarded to the prosecuting authority but he has not preferred any charge, the prosecutor may order an examination under this rule and such an examination shall in these Rules be referred to as a formal preliminary examination.

(2) The order for a formal preliminary examination shall—

(a) appoint the date, time and place at which the formal preliminary examination shall take place;

(b) state the nature of the allegations against the accused;

(c) list the witnesses whom the prosecutor requires to examine orally; and

(d) list the witnesses whose written statements or other record of evidence are to be read out.

(3) The order shall be served on the accused and the court administration officer not less than 24 hours before the time appointed for the formal preliminary examination.

(4) On receipt of the order, the court administration officer—

(a) shall summon to attend the formal preliminary examination—

(i) the witnesses listed in the order whom the prosecutor seeks to examine orally; and

(ii) such additional witnesses as the accused may request;

(b) may arrange for the attendance at the formal preliminary examination of a court recorder and interpreter.

Conduct of formal preliminary examination

6.—(1) A formal preliminary examination shall be conducted by an officer of the legal services branch of any corps of the regular forces (“the conducting officer”).

(2) Subject to paragraph (4) below, each witness whom the prosecutor seeks to examine orally shall be examined by the conducting officer, after which the accused shall be entitled to cross-examine the witness.

(3) A signed written statement or other record of the evidence of each witness listed under rule 5(2)(d) above shall be read out by the conducting officer, unless the accused consents to their inclusion in the record of the examination without being read out.

(4) If—

(a) the case being investigated concerns behaviour of a violent, cruel or sexual nature; and

(b) the relevant witness is a person under the age of 17,

then—

(i) the conducting officer may read out any written statement made by or taken from the witness which would be admissible if given orally; and

(ii) the accused may not cross-examine the witness in person.

(5) During the formal preliminary examination the conducting officer may summon any witness to attend the examination and give oral evidence.

(6) After paragraphs (2) and (3) above have been complied with, the conducting officer shall explain to the accused—

(a) that he may give evidence if he so wishes but he is not obliged to do so;

(b) the consequences of choosing to remain silent; and

(c) that he may call witnesses on his behalf.

(7) Any witness for the accused (including the accused himself) may give evidence orally but shall not be subject to cross-examination, except that the conducting officer may ask a question where it is necessary to resolve an ambiguity or to enable the evidence to be recorded in a coherent form.

(8) Except where the witness is a person under the age of 14, any evidence given orally during the formal preliminary examination shall be given on oath, administered by the conducting officer.

(9) Any evidence given orally during the formal preliminary examination shall be recorded by the conducting officer or a court recorder.

(10) Where the evidence is recorded in writing, the record of his evidence shall be read back to the witness at the conclusion of his evidence, corrected where necessary and signed by him.

(11) A copy of any statement read out in accordance with paragraph (3) or (4) above and the transcript of any shorthand note or mechanical record shall be included in the record of the examination.

(12) After the conclusion of the formal preliminary examination, the conducting officer shall deliver the record of the examination to the prosecuting authority.

Charge sheet

7.—(1) A charge sheet shall state—

(a) the name, service number and rank of the accused;

(b) the name of the unit, if any, in which the accused is serving;

(c) particulars of how the accused is subject to military law or otherwise triable under the Act;

(d) any charge preferred against the accused; and

(e) whether any charge preferred against the accused is to be tried by general court-martial or district court-martial.

(2) A charge sheet shall be signed and dated by the prosecutor.

Charges and joinder

8.  The rules contained in Schedule 1 to these Rules shall be observed in proceedings before courts-martial.

Notifying the accused’s commanding officer

9.—(1) Where the prosecutor has preferred a charge against an accused to be tried by court-martial, the prosecutor shall notify the commanding officer of the accused of the charge by sending to the commanding officer the prosecution papers.

(2) In these Rules,“the prosecution papers” means—

(a) a copy of the charge sheet;

(b) a list of any witnesses whom the prosecutor proposes to call;

(c) copies of any statements of the prosecution witnesses, or other record of their evidence;

(d) a list of any exhibits which the prosecutor proposes to put in evidence and copies of those exhibits or details of their whereabouts;

(e) a copy of any conduct sheets of the accused; and

(f) a list of all unused material.

Notifying the court administration officer

10.—(1) The prosecutor shall notify the court administration officer of any charge which he has preferred by sending to him a copy of the prosecution papers.

(2) On receipt of a copy of the prosecution papers from the prosecutor, the court administration officer shall send a copy of the prosecution papers to the Judge Advocate General (or his deputy).

Notification of trial

11.—(1) This rule applies where the commanding officer has been notified in respect of an accused under his command that the prosecutor has preferred a charge.

(2) As soon as is practicable after receipt of the prosecution papers, the commanding officer shall notify the accused that he is to be tried by court-martial.

(3) On notifying the accused in accordance with paragraph (2) above, the commanding officer shall serve the accused with—

(a) the prosecution papers;

(b) where so required by the prosecutor, a statement explaining the effect of section 11 of the Criminal Justice Act 1967(1) (notice of alibi) and a form for the accused’s notice of alibi;

(c) a form for notifying the court administration officer of the accused’s legal adviser; and

(d) a form for acknowledgement of receipt.

Discontinuing proceedings before trial

12.  If before the commencement of the trial of a charge the prosecutor discontinues proceedings on that charge, he shall serve notice in writing on the accused and the court administration officer.

Description of the court-martial

13.  If before the commencement of the trial of a charge the prosecutor determines that any charge should be tried by a court-martial of a different description from that contained in the initial charge sheet, he shall serve notice in writing on the accused and the court administration officer.

Amending charges and additional charges before trial

14.—(1) If before the commencement of the trial of a charge the prosecutor—

(a) amends, or substitutes another charge or charges for, that charge;

(b) prefers an additional charge against the accused and directs that the additional charge shall be tried at the same court-martial trial as the original charge,

he shall serve notice on the accused and the court administration officer.

(2) Except with the consent of the accused, notice under paragraph (1) above shall not be served less than 24 hours before the time appointed for the trial of the original charge.

(3) Where the prosecutor is required to serve notice on the accused in accordance with this rule, he shall do so by sending to the commanding officer of the accused or, with the consent of the accused, by serving directly on the accused—

(a) a copy of the amended charge sheet;

(b) any papers which are required to be added to the prosecution papers as a result of amending the charge sheet; and

(c) where in the opinion of the prosecutor it is necessary, a statement explaining the effect of section 11 of the Criminal Justice Act 1967 and a form for the accused’s notice of alibi.

(4) Where any document is received by the commanding officer in accordance with paragraph (3) above, he shall serve it on the accused as soon as is practicable.

(5) Where the prosecutor is required to serve notice on the court administration officer in accordance with this rule, he shall do so by sending to the court administration officer or, if less than 24 hours before the time appointed for the trial of the original charge, the judge advocate—

(a) a copy of the amended charge sheet; and

(b) any papers which are required to be added to the prosecution papers as a result of amending the charge sheet.

PART III GENERAL MATTERS

Conduct of the defence

15.—(1) An accused who has been notified that he is to be tried by court-martial shall be afforded a proper opportunity for preparing his defence.

(2) A defending officer shall be appointed by the commanding officer of the accused to assist the accused to prepare and conduct his defence, unless the accused states in writing that he does not wish such an appointment to be made.

(3) The accused may appoint a legal adviser to act for him and any right or responsibility which accrues to the accused by virtue of these Rules (except pleading to a charge) may be exercised by the accused’s legal adviser on his behalf.

(4) The accused shall inform the court administration officer of the name and address of his legal adviser as soon as is practicable after a legal adviser has been appointed.

(5) A legal adviser may represent an accused at a formal preliminary examination, at any preliminary proceedings and before a court-martial if he is—

(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990(2);

(b) an advocate or a solicitor in Scotland;

(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland; or

(d) a person who has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.

Convening the court

16.—(1) On receipt of a copy of the prosecution papers, the court administration officer shall order a court-martial to convene to try the accused.

(2) Not less than 24 hours before the time appointed for the trial, a copy of the convening order shall be served on—

(a) the accused; and

(b) the officer members of the court, the Judge Advocate General (or his deputy) and the prosecuting authority,

(3) If the court administration officer amends or withdraws the order convening the court-martial, he shall serve a copy of the amended order or serve notice in writing as appropriate on—

(a) the accused; and

(b) the officer members of the court, the Judge Advocate General (or his deputy) and the prosecuting authority.

(4) The court administration officer may not withdraw the order convening a court-martial after the time appointed for the trial.

Ineligibility for membership of courts-martial

17.  An officer shall not be eligible to be a member of a court-martial for the trial of an accused if—

(a) he serves under the command of—

(i) the higher authority who referred the case against the accused to the prosecuting authority;

(ii) the prosecuting authority; or

(iii) the court administration officer;

(b) he—

(i) has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;

(ii) is an advocate or a solicitor in Scotland;

(iii) is a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland;

(iv) has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.

Appointment of court officials

18.  The court administration officer may appoint at any time a person or persons to act as—

(a) court recorder;

(b) interpreter,

at a court-martial or at any preliminary proceedings.

Delegation of the court administration officer’s functions

19.  The court administration officer appointed by the Defence Council in accordance with section 84A of the Act may delegate any of his functions to persons appointed to act as court administration officers under his direction.

Additional evidence before trial

20.  If before the commencement of the trial the prosecutor wishes to adduce at trial any evidence additional to that contained in the prosecution papers, he shall serve a copy of the additional evidence (or details of its whereabouts) on the accused and the court administration officer.

Witness not called by the prosecutor

21.—(1) This rule applies where the prosecutor does not intend to call as a witness—

(a) any person whose statement or record of evidence has been served on the accused as part of the evidence for the prosecution; or

(b) any person in respect of whose evidence he has served notice under rule 56 below.

(2) Where this rule applies, unless the accused waives the requirement, the prosecutor shall—

(a) serve notice in writing on the accused that he does not intend to call that person; or

(b) tender that person at trial for cross-examination by the accused.

Witnesses for the accused

22.—(1) As soon as is practicable after the accused has been notified that he is to be tried by court-martial, the court administration officer shall notify the accused that any person whom he reasonably requires to give evidence at preliminary proceedings or the court-martial may be summoned on his behalf by the court administration officer.

(2) If the accused requests the court administration officer to summon a witness, the accused shall provide to the court administration officer sufficient information in sufficient time to enable a summons to be served.

(3) If in the opinion of the court administration officer it is not reasonable to summon to preliminary proceedings or a court-martial any witness requested by the accused, he shall inform the accused, the Judge Advocate General (or his deputy) and the prosecutor in writing of his decision and the reason for it.

Witness summons

23.—(1) Where any person is required to give evidence at—

(a) a formal preliminary examination;

(b) any preliminary proceedings;

(c) a court-martial;

the court administration officer may summon the witness by issuing a witness summons in the form set out in Schedule 2 to these Rules.

(2) Where any person is required to give evidence at a court-martial, the judge advocate may, after the commencement of the trial, issue a witness summons.

(3) A witness summons shall be served on the witness—

(a) by delivering it to him personally;

(b) by leaving it for him with a person at the witness’s usual place of abode;

(c) by post in a letter addressed to him at his last known or usual place of abode; or

(d) where the witness is subject to military law, air force law or the Naval Discipline Act 1957(3), through his commanding officer.

(4) Where any person is served with a witness summons in accordance with this rule, there shall be paid or tendered to him at that time any expenses which by regulations made by the Defence Council are payable to a witness in respect of his attendance.

(5) For the purposes of paragraph (4) above—

(a) the tender of a warrant or voucher entitling the person to travel free of charge shall constitute tender of his expenses in respect of any travelling required; and

(b) the tender of a written undertaking by the court administration officer or the president of the court-martial to defray any other expenses payable under the regulations shall constitute tender in respect of those expenses.

Oaths and affirmations

24.  Any oath or affirmation shall be administered in the form and manner set out in Schedule 3 to these Rules.

PART IV PRELIMINARY PROCEEDINGS

Hearing for directions

25.—(1) The judge advocate may direct the court administration officer to convene a hearing for the purpose of giving directions—

(a) of his own motion; or

(b) on the application of the prosecutor or accused for such a hearing;

and such a hearing shall be referred to in these Rules as a hearing for directions.

(2) An application for a hearing for directions shall—

(a) be made to the Judge Advocate General (or his deputy) in the form set out in Schedule 2 to these Rules; and

(b) specify the reason for which it is made.

(3) Subject to rule 28 below, the applicant shall serve notice of the application in writing on every other party to the proceedings and the court administration officer.

(4) Before directing the court administration officer to convene a hearing for directions, the judge advocate shall afford each party to the proceedings the opportunity of making written representations to him.

(5) Paragraph (4) above shall not oblige the judge advocate to afford any party the opportunity of making representations where it appears to him that it would be impracticable to do so, or would cause unnecessary delay, or where the application is made in accordance with rule 28 below.

(6) On receipt of a direction from the judge advocate under paragraph (1) above, the court administration officer shall—

(a) appoint the date, time and place at which the hearing for directions will take place;

(b) issue a notice in writing of the date, time and place appointed;

(c) list in the notice such of the matters contained in Schedule 4 to these Rules to be addressed at the hearing as the judge advocate may request;

(d) subject to rule 28 below, serve the notice on the parties to the proceedings; and

(e) arrange for the attendance at the hearing of a court recorder and, if the judge advocate or any party so requests, an interpreter.

(7) If in advance of the hearing the judge advocate so directs, the prosecutor shall—

(a) prepare an outline of the prosecution case; and

(b) serve a copy of that outline on the accused and the judge advocate.

Hearing for directions in chambers

26.—(1) A hearing for directions shall take place before the judge advocate in chambers.

(2) Except with the leave of the judge advocate and subject to rule 28 below, the only persons entitled to be present at a hearing for directions are the court administration officer, the prosecutor, the accused, the accused’s legal adviser, the court recorder and any interpreter.

Substance of a hearing for directions

27.—(1) The parties to the proceedings shall address the judge advocate at the hearing for directions on such of the matters contained in Schedule 4 to these Rules as are indicated in the notice convening the hearing.

(2) Paragraph (1) above is without prejudice to the right of the judge advocate or any party to the proceedings to raise at the hearing for directions any other matter.

(3) The judge advocate may at a hearing for directions make such directions as appear to him to be necessary to secure the proper and efficient trial of the case.

(4) Subject to rule 28 below, the court administration officer shall serve a copy of the record of the hearing for directions on the judge advocate, the prosecutor and the accused before the court-martial.

Hearing for directions without notice to the accused

28.—(1) Where in the public interest it is desirable to seek a direction from the judge advocate without giving notice to the accused, the prosecutor may apply for a hearing for directions in accordance with this rule.

(2) Where the prosecutor applies for a hearing for directions under this rule, the judge advocate shall determine whether in the interests of justice such a hearing is necessary.

(3) Where the judge advocate grants the prosecutor’s application under this rule, he shall direct that the hearing for directions shall proceed without notice to the accused and without the participation of the accused.

Preparatory hearing

29.—(1) The judge advocate may direct the court administration officer to convene a hearing for the purpose of giving orders and rulings in preparation for a court-martial—

(a) of his own motion; or

(b) on the application of the prosecutor or accused for such a hearing;

and such a hearing shall be referred to in these Rules as a preparatory hearing.

(2) An application for a preparatory hearing shall—

(a) be made to the judge advocate in the form set out in Schedule 2 to these Rules; and

(b) specify the reason for which it is made.

(3) The applicant shall serve notice in writing of the application with a time estimate of the length of the preparatory hearing on every other party to the proceedings and the court administration officer.

(4) Before directing the court administration officer to convene a preparatory hearing, the judge advocate shall afford each party to the proceedings the opportunity of making written representations to him.

(5) Paragraph (4) above shall not oblige the judge advocate to afford any party the opportunity of making representations where it appears to him that it would be impracticable to do so, or would cause unnecessary delay.

(6) On receipt of a direction from the judge advocate under paragraph (1) above, the court administration officer shall—

(a) appoint the date, time and place at which the preparatory hearing will take place;

(b) issue a notice in writing of the date, time and place appointed;

(c) serve the notice on the parties to the proceedings; and

(d) arrange for the attendance at the hearing of a court recorder and, if the judge advocate or any party so requests, an interpreter.

Challenges and oaths at a preparatory hearing

30.—(1) At the commencement of the preparatory hearing the accused shall be entitled to object to the judge advocate and any interpreter.

(2) At the commencement of the preparatory hearing the judge advocate shall administer an oath to any interpreter.

Substance of a preparatory hearing

31.—(1) At a preparatory hearing the judge advocate may make an order or ruling on—

(a) any question as to the admissibility of evidence;

(b) any other question of law, practice or procedure relating to the case.

(2) An order or ruling made under this rule shall have effect until the conclusion of the court-martial trial unless it appears to the judge advocate on application made to him at any stage during the proceedings that in the interests of justice it should be varied or discharged.

PART V PROCEEDINGS AT COURT-MARTIAL

The judge advocate

32.—(1) The judge advocate shall conduct the court-martial in accordance with the law of England and Wales.

(2) The judge advocate shall ensure that a proper record of the proceedings is made, in sufficient detail to enable the reviewing authority to follow the course of the proceedings.

The president

33.—(1) Subject to rule 32 above, the president shall be responsible for ensuring that the trial befits the traditions and standards of the Army.

(2) It shall be the duty of the president to ensure that any person present during the proceedings for instruction takes no part in the proceedings and expresses no opinion to the court, on any matter relating to the trial, before the conclusion of the trial.

Sittings and adjournment

34.—(1) If it appears to the judge advocate necessary in the interests of justice, a court-martial may adjourn from time to time.

(2) A court-martial shall not sit on Saturday, Sunday, Christmas Day or Good Friday unless in the opinion of the court it is necessary to do so.

(3) A court-martial shall sit at such times and for such periods each day as seem to the court to be reasonable in the circumstances.

Record of proceedings

35.—(1) The record of proceedings of a court-martial shall include—

(a) the record of findings; and

(b) the record of sentence, if any.

(2) A certified transcript or note of evidence given at the court-martial and any preliminary proceedings shall be kept with the record of proceedings.

(3) Any transcript of a shorthand note shall be signed by the shorthand writer.

(4) Any transcript of a mechanical record shall be signed by the person who transcribed it.

(5) At the conclusion of the trial, the record of proceedings shall be signed by the judge advocate and the president.

Closed court

36.  Where a court-martial sits in closed court, any person under instruction is permitted to be present.

Pre-trial hearing

37.—(1) The judge advocate may direct the court administration officer to order a hearing to take place at the court-martial before the commencement of the trial of an accused—

(a) of his own motion; or

(b) on the application of the prosecutor or accused for such a hearing;

and such a hearing shall be referred to in these Rules as a pre-trial hearing.

(2) An application for a pre-trial hearing shall—

(a) be made to the judge advocate in the form set out in Schedule 2 to these Rules; and

(b) specify the reason for which it is made.

(3) An applicant shall serve notice in writing of the application with a time estimate of the length of the pre-trial hearing on every other party to the proceedings and the court administration officer.

(4) Before directing the court administration officer to order a pre-trial hearing, the judge advocate shall afford each party to the proceedings the opportunity of making written representations to him.

(5) Paragraph (4) above shall not oblige the judge advocate to afford any party the opportunity of making representations where it appears to him that it would be impracticable to do so, or would cause unnecessary delay.

(6) On receipt of a direction from the judge advocate under paragraph (1) above, the court administration officer shall—

(a) issue an order convening the court-martial; or

(b) if the order convening the court-martial has already been issued, amend the order;

so that the order shall specify—

(i) the date and time at which the pre-trial hearing before the judge advocate shall take place; and

(ii) the date and time at which the officer members of the court shall convene for the trial.

(7) Nothing in this rule shall prevent the judge advocate from ordering a pre-trial hearing after the full court has assembled.

Challenges and oaths at a pre-trial hearing

38.—(1) Where a pre-trial hearing takes places, rules 40 and 41 below shall be complied with at the beginning of the pre-trial hearing, except that—

(a) the accused may not state his objection to any member of the court other than the judge advocate; and

(b) the judge advocate shall not administer an oath or affirmation to any officer member of the court,

until after the full court has convened.

(2) When paragraph (1) above applies, the application of rules 40 and 41 below in respect of court members not present at the pre-trial hearing shall be modified accordingly.

Substance of a pre-trial hearing

39.—(1) At a pre-trial hearing the judge advocate may make an order or ruling on—

(a) any question as to the admissibility of evidence;

(b) any other question of law, practice or procedure relating to the case.

(2) An order or ruling made under this rule shall have effect until the conclusion of the court-martial trial unless it appears to the judge advocate on application made to him at any stage during the proceedings that in the interests of justice it should be varied or discharged.

(3) If the judge advocate allows any application such that there is no charge remaining to which the accused can be required to plead, he shall direct the court administration officer to dissolve the court.

Challenges by the accused

40.—(1) This rule applies subject to rule 38 above.

(2) When the full court has assembled, the order convening the court-martial (including the name of any officer specified therein) and the names of the judge advocate and any interpreter shall be read to the accused.

(3) The accused may object to any person whose name is read out and to any interpreter appointed after the commencement of the trial.

(4) If more than one person is objected to, the objection to each shall be considered in the following order—

(a) the judge advocate;

(b) the president;

(c) the other members of the court;

(d) any waiting member; and

(e) any interpreter.

(5) The determination of the judge advocate on any objection shall be announced in open court.

(6) If an objection to an officer member other than the president is allowed, any waiting member in respect of whom no objection has been made or allowed shall take his place.

(7) Where a court-martial is convened to try two or more accused separately and one accused objects to the president or to any other member of the court, the judge advocate may, if he thinks fit, adjourn the trial of that accused and proceed with the trial of the other accused only.

Administration of oaths and affirmations

41.—(1) This rule applies subject to rule 38 above.

(2) After the accused has been given the opportunity to challenge the members of the court, oaths or affirmations shall be administered in the presence of the accused.

(3) The judge advocate, or any other member of the court on his behalf, shall administer an oath or affirmation to—

(a) the president;

(b) each officer member of the court;

(c) any person in attendance for instruction;

(d) any interpreter;

(e) any witness.

Commencement of the trial

42.—(1) For the purposes of the Act and these Rules the trial of an accused commences immediately after the last court member has been sworn.

(2) If after the commencement of the trial the judge advocate allows any challenge, objection, plea or application such that there is no charge remaining to which the accused can be required to plead, he shall dissolve the court.

Judge advocate sitting alone

43.—(1) Where—

(a) the accused makes a submission of no case to answer; or

(b) for any reason the judge advocate is of the opinion that he should rule on a question in the absence of the other members of the court,

the judge advocate may direct the other members of the court to withdraw.

(2) If, while the judge advocate is sitting alone in accordance with these Rules, a person commits an offence under section 57 or 101 of the Act, the judge advocate may report the occurrence to—

(a) the president; or

(b) if the offence is committed during preliminary proceedings and the person is subject to military law, the commanding officer of that person.

Severance

44.—(1) Where—

(a) an accused is charged with more than one offence; or

(b) two or more accused are charged in the same charge sheet;

and the judge advocate rules that the fair trial of an accused may be prejudiced if the charges are not severed or that for any other reason it is desirable that the charges are severed, he may—

(i) order the court to try only one or more charges;

(ii) order that the court to try only one or more accused;

(iii) leave any charge or any accused to be tried by a new court.

(2) Where an accused is charged in more than one charge sheet and the judge advocate rules that for any reason it is desirable that the court tries only the charge or charges set out in one charge sheet, he may leave the charge or charges set out in any other charge sheet to be tried by a new court.

Arraignment

45.—(1) The accused shall be arraigned by the judge advocate after the commencement of the trial.

(2) The accused need not be arraigned on all the charges in the charge sheet at the same time.

(3) Before the accused is arraigned on any charge, the judge advocate shall pass to each member of the court a copy of the charge sheet which shall set out only the charge or charges on which the accused is to be arraigned and any charge which is stated to be an alternative to a charge on which the accused is to be arraigned.

(4) The accused shall be required to plead separately to each charge on which he is arraigned.

Guilty plea

46.—(1) If the accused pleads guilty to a charge, the judge advocate shall, if it appears necessary to him and before the court accepts the plea, satisfy himself that the accused understands—

(a) the nature of the charge;

(b) the general effect of the plea; and

(c) the difference in procedure following pleas of guilty and not guilty.

(2) The court shall not accept a plea of guilty if—

(a) the judge advocate, having regard to all the circumstances, considers that the court should not accept the plea; or

(b) the accused is liable, if convicted, to a sentence of death.

(3) Where—

(a) a plea of guilty is not accepted by the court; or

(b) the accused does not plead to the charge or does not plead to it intelligibly,

the court shall enter a plea of not guilty.

Alternative charges

47.—(1) Where an accused pleads guilty to the first of two or more alternative charges, the court, if it accepts the plea, shall record a finding of guilty in respect of that charge and shall give the prosecutor leave to discontinue proceedings in respect of any alternative charge or charges.

(2) Where an accused pleads guilty to any other of two or more alternative charges, the court shall—

(a) if the prosecutor gives his consent—

(i) record a finding of guilty on any charge to which the accused has pleaded guilty,

(ii) record a finding of not guilty on any alternative charge placed before it on the charge sheet, and

(iii) give the prosecutor leave to discontinue proceedings in respect of any further alternative charge or charges; or

(b) if the prosecutor does not give the consent referred to in sub-paragraph (a) above, proceed as if the accused had pleaded not guilty to all the charges.

(3) If the court records a finding of guilty under paragraph (1) or (2)(a) above and subsequently allows the accused to change his plea under rule 54 below, the court may reinstate and arraign the accused on any alternative charge which was discontinued.

Additional charges during trial

48.—(1) If after the commencement of the trial the prosecutor intends to seek the leave of the court to prefer an additional charge, he shall, unless the accused waives the requirement, serve notice in writing of such intention on the accused before the application is made.

(2) Where notice is served on the accused in accordance with paragraph (1) above, he may apply for an adjournment of the trial.

Changes to the charge sheet during trial

49.—(1) If after the commencement of the trial the prosecutor intends to—

(a) amend, or substitute another charge or charges for, a charge;

(b) discontinue proceedings on a charge;

(c) prefer an additional charge;

the prosecutor shall seek the leave of the court.

(2) Where the court gives leave to discontinue proceedings on a charge, it shall consider whether to give the direction provided for in section 83B(14) of the Act.

Changes to the charge sheet by the court

50.  If after the commencement of the trial it appears that, with due regard to the fairness to the accused, it is desirable in the interests of justice to amend a charge, the court may do so.

Procedure after guilty plea

51.—(1) This rule applies where—

(a) the court has accepted only a plea or pleas of guilty; or

(b) the court has accepted a plea or pleas of guilty and the prosecutor does not proceed to the trial of any charge to which an accused has pleaded not guilty.

(2) This rule applies whether the charge sheet is in respect of one or more than one accused.

(3) After the court records a finding of guilty, the prosecutor shall address the court on the facts of the case.

Pleas of guilty and not guilty on one charge sheet

52.—(1) This rule applies where in respect of one charge sheet—

(a) the court has accepted a plea or pleas of guilty;

(b) a plea or pleas of not guilty have been entered; and

(c) the prosecutor proceeds to the trial of any charge on which a plea of not guilty has been entered.

(2) This rule applies whether the charge sheet is in respect of one or more than one accused.

(3) Unless the judge advocate directs otherwise, the trial of any charge on which a plea of not guilty has been entered shall proceed in accordance with these Rules before the court considers any guilty plea.

(4) After the court has announced its finding on each charge in respect of which a plea of not guilty has been entered, the court shall consider any guilty plea.

(5) After the court records a finding of guilty in respect of each charge to which the accused has pleaded guilty, the prosecutor shall address the court on the facts of the case.

Dispute on facts after finding of guilty

53.—(1) Where after the court has recorded a finding of guilty in respect of any charge there are disputed facts in the case, any issue of fact may be tried.

(2) Where an issue of fact is being tried in accordance with this rule—

(a) the judge advocate may direct the prosecutor to call any witness to give evidence, and

(b) the prosecutor and the accused may, with the leave of the judge advocate, adduce evidence.

(3) The court shall sit in closed court while deliberating on its finding on the issue of fact.

(4) The finding of the court on the issue of fact shall be determined by a majority of the votes of the members of the court and announced in open court.

(5) In the case of an equality of votes on the finding on the issue of fact, the president shall have a second or casting vote.

Change of plea

54.—(1) At any time before the court closes to deliberate on its finding on a charge, an accused who has pleaded not guilty to the charge may, with the leave of the judge advocate, withdraw his plea and substitute a plea of guilty.

(2) At any time before the court closes to deliberate on its sentence on a charge, an accused who has pleaded guilty to the charge may, with the leave of the judge advocate, withdraw his plea and substitute a plea of not guilty.

(3) Where an accused changes his plea, the court shall proceed so far as is necessary as if the initial plea to that charge were the plea substituted.

Procedure after not guilty plea

55.  Before calling the witnesses for the prosecution, the prosecutor may make an opening address.

Additional evidence during trial

56.—(1) If after the commencement of the trial the prosecutor intends to adduce evidence additional to that referred to in the prosecution papers, he shall where practicable serve notice in writing of such intention together with the particulars of the additional evidence on the accused and the judge advocate before it is adduced.

(2) Where notice and particulars are served on him in accordance with paragraph (1) above, or where evidence is adduced without such notice being given, the accused may apply to the judge advocate for an adjournment of the trial.

Expert evidence

57.—(1) Expert evidence shall not be adduced at trial without the leave of the judge advocate unless the party proposing to rely on it has served on every other party and the court administration officer, not less than 14 days before the date appointed for the trial, a statement of the substance of the expert evidence.

(2) The statement referred to in paragraph (1) above shall be in writing unless every other party consents to it being made orally.

Exhibits

58.—(1) Any exhibit admitted in evidence shall be marked sequentially with either a number or a letter.

(2) Each exhibit or a label attached to each exhibit shall be signed by the judge advocate.

(3) Each exhibit shall be retained with the record of proceedings, unless in the opinion of the judge advocate having regard to the nature of the exhibit or for other good reason it is not expedient to retain the exhibit with the record.

(4) Where an exhibit is not retained with the record of proceedings, the judge advocate shall ensure that proper steps are taken for its safe custody.

Presence of witnesses

59.—(1) Except for the accused and any expert or character witness, a witness as to fact shall not, except by leave of the judge advocate, be in court while not under examination.

(2) If while a witness is under examination a question arises as to the admissibility of a question or otherwise with regard to the evidence, the judge advocate may direct the witness to withdraw until the question is determined.

(3) The judge advocate may direct any expert or character witness present in court to withdraw if the judge advocate considers in the interests of justice that his presence is undesirable.

Evidence through television link

60.—(1) Any application by the prosecutor or an accused for leave under section 32 of the Criminal Justice Act 1988(4) for evidence to be given by a witness through a live television link shall be made as soon as is practicable after the commencement of the trial.

(2) An application may not be made under paragraph (1) above without the leave of the judge advocate unless not less than 28 days before the date appointed for the trial the party making the application has served a notice in the form set out in Schedule 2 to these Rules on every other party, the court administration officer and the Judge Advocate General (or his deputy) stating—

(a) the grounds of the application;

(b) the name of the witness;

(c) where the witness is under the age of 18, the date of birth of the witness;

(d) the country and place where it is proposed the witness will be when giving evidence; and

(e) the name, occupation and relationship to the witness of any person proposed to accompany the witness and the grounds for believing that person should accompany the witness.

(3) Where the court gives leave for a witness under the age of 14 to give evidence through a live television link, the witness shall be accompanied by a person acceptable to the court and, unless the court otherwise directs, by no other person.

Video recordings of testimony from child witnesses

61.—(1) Any application by the prosecutor or an accused for leave under section 32A of the Criminal Justice Act 1988(5) for evidence to be given by a witness by means of a video recording shall be made as soon as is practicable after the commencement of the trial.

(2) An application may not be made under paragraph (1) above without the leave of the judge advocate unless not less than 28 days before the date appointed for the trial the party making the application has served a notice in the form set out in Schedule 2 to these Rules together with a copy of the video recording to which the application relates on every other party, the court administration officer and the Judge Advocate General (or his deputy) stating—

(a) the grounds of the application;

(b) where the witness is under the age of 18, the date of birth of the witness;

(c) the name of the witness;

(d) the date on which the video recording was made;

(e) that in the opinion of the applicant the witness is willing and able to attend the court-martial for cross-examination; and

(f) the circumstances in which the video recording was made.

Examination of witnesses

62.—(1) The judge advocate may allow a request that the cross-examination or re-examination of a witness be postponed if he is satisfied that there is a good reason for such a request and that there is no injustice to the accused in doing so.

(2) The judge advocate may question any witness and, if he considers it appropriate, may put to the witness a question from any other member of the court.

(3) Any other member of the court may, with the judge advocate’s permission, question any witness after the court’s finding on the charge has been announced.

(4) If in the opinion of the judge advocate it is in the interests of justice to do so, the court may at any time—

(a) call any witness whom it has not already heard;

(b) recall a witness;

(c) permit the accused or the prosecutor to recall a witness.

Submission of no case to answer

63.—(1) At the close of the case for the prosecution the accused may submit, in respect of any charge, that the prosecution has failed to establish a prima facie case for him to answer.

(2) If the submission is allowed, the judge advocate shall direct the court to find the accused not guilty of the charge to which the submission relates.

(3) If the submission is not allowed, the court shall proceed with the trial.

Finding of not guilty before conclusion of the defence

64.  The court may at any time after the close of the case for the prosecution find the accused not guilty of a charge, provided that the prosecutor has been given an opportunity to address the court on such a finding.

The case for the defence

65.—(1) After the close of the case for the prosecution, the judge advocate shall satisfy himself that the accused understands—

(a) that he may give evidence in his defence if he so wishes but he is not obliged to do so;

(b) the consequences of choosing to remain silent at trial;

(c) that, if he chooses to give evidence, he will be liable to be cross-examined by the prosecutor and questioned by the judge advocate; and

(d) that he may call witnesses on his behalf.

(2) Where the accused intends to call a witness to the facts of the case, other than himself, he may make an opening address outlining the case for the defence before the evidence is given.

Witnesses for the defence

66.  Except with the leave of the judge advocate, if the accused elects to give evidence he shall be called before any other witness for the defence.

Further evidence

67.  With the leave of the judge advocate the prosecutor may call or recall a witness to give evidence on any matter raised by the accused in his defence which the prosecutor could not—

(a) properly have dealt with before the accused disclosed his defence; or

(b) reasonably have foreseen.

Closing addresses

68.—(1) Subject to paragraph (4) below, the prosecutor and the accused may each make a closing address to the court.

(2) The accused shall be entitled to make his closing address after the prosecutor.

(3) Where two or more accused are represented by the same legal adviser, he may make only one closing address.

(4) Where the accused is not represented by a legal adviser and has called in person no witnesses as to fact other than himself, the prosecutor shall not make a closing address.

Summing up

69.  After the closing addresses, if any, the judge advocate shall direct the court upon the law relating to the case and summarise the evidence.

Deliberation on finding

70.—(1) After the summing up, the judge advocate shall withdraw and the court shall close to deliberate on its finding on each charge before it.

(2) If the court requires further direction on the law during its deliberation on a finding on any charge, it shall suspend its deliberation to seek and be given further direction by the judge advocate in open court.

(3) During its deliberation on a finding, the court shall not separate until the finding has been reached unless the judge advocate directs that in the interests of justice the court may separate.

(4) The vote of each member of the court on the finding on each charge shall be given orally in reverse order of seniority.

Special finding

71.—(1) For the purposes of these Rules a special finding is, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, a finding of guilty subject to exceptions or variations specified in the finding.

(2) The court may not reach a special finding unless it appears that the difference is not so material as to have prejudiced the accused in his defence.

Record of finding

72.—(1) The finding of the court on a charge shall be recorded in writing and dated and signed by the president.

(2) Each finding shall be announced separately by the president.

(3) If the court reaches a finding of guilty or a special finding and the judge advocate is of the opinion that such a finding is contrary to the law relating to the case, he shall direct the court on the findings which are open to it and the court shall retire to reconsider its finding.

(4) If the judge advocate is satisfied that the findings are not incorrect in law, he shall sign the record of the findings.

Inquiry into finding

73.  Where the interests of justice require it, the judge advocate may in open court question the court on any finding of fact reached during its deliberation on the finding on any charge.

Offences taken into consideration

74.—(1) Where the court has recorded a finding of guilty on any charge or a special finding, the accused may request the court to take into consideration any other offence committed by him of a similar nature to that of which he has been found guilty or in respect of which a special finding has been reached, and, upon such a request being made, the court may agree to take into consideration any such offence as to the judge advocate seems proper.

(2) A list of the offences which the accused admits having committed and which the court agrees to take into consideration shall be signed by the accused and attached to the record of proceedings.

PART VI SENTENCING

Pre-sentence report and previous convictions

75.—(1) Where the court administration officer has arranged for a pre-sentence report to be prepared in advance of the trial, he shall serve a copy on the accused and the Judge Advocate General (or his deputy) before the time appointed for the trial.

(2) Where the prosecutor has obtained a record of the accused’s previous convictions in advance of the trial, he shall serve a copy of the accused and the court administration officer before the time appointed for the trial.

Evidence before sentencing

76.—(1) This rule applies where the court has recorded a finding of guilty or a special finding on any charge.

(2) Where practicable, the prosecutor shall present to the court information concerning—

(a) the accused’s age and rank;

(b) the accused’s service record;

(c) any recognised acts of gallantry or distinguished conduct on the part of the accused and any decoration to which he is entitled;

(d) particulars of any offence (whether under the Act or otherwise) of which the accused has been found guilty (during his service or otherwise), provided that any convictions treated as spent for the purposes of the Rehabilitation of Offenders Act 1974(6) shall be clearly marked as such;

(e) particulars of any formal police caution administered to the accused by a constable in England and Wales or Northern Ireland;

(f) particulars of the length of time the accused has been under arrest awaiting trial or in custody under a current sentence;

(g) details of the accused’s pay, terminal benefits and future pension entitlements; and

(h) whether the commanding officer of the accused wishes to retain the accused in his unit.

(3) Unless the accused requires otherwise, the matters referred to in paragraph (2) above need not be adduced in compliance with the strict rules of evidence.

(4) The court shall consider any pre-sentence report concerning the accused in the possession of the court administration officer.

(5) A record of antecedents signed by the accused may be accepted in evidence by the court under paragraph (2)(d) above where the accused has admitted that he has been found guilty of each offence listed in the record and has had explained to him the purpose for which such admission was sought.

Evidence on behalf of the accused

77.—(1) The accused may—

(a) give evidence on oath and call witnesses in mitigation of sentence and as to his character;

(b) produce to the court any document or written report; and

(c) address the court in mitigation of sentence.

(2) Unless the prosecutor requires otherwise, any document or report referred to in paragraph (1)(b) above need not be adduced in compliance with the strict rules of evidence.

Postponement of deliberation on sentence

78.  Where two or more accused are tried separately by the same court upon charges arising out of the same circumstances, the court may, if the judge advocate thinks that the interests of justice so require, postpone its deliberation on the sentence to be awarded to any one or more of such accused until it has recorded its findings in respect of all the accused.

Deliberation on sentence

79.—(1) Subject to section 118A(3) of the Act and to paragraph (2) below, the court shall award one sentence in respect of—

(a) all the offences of which the accused has been found guilty; and

(b) all the offences taken into consideration in accordance with rule 74 above.

(2) The sentence may include a direction that such deductions shall be made from the pay of the accused as may have been made if the accused had been found guilty by the court of an offence taken into consideration as well as any offence of which he has been found guilty.

Announcement of sentence

80.—(1) The sentence shall be recorded in writing, dated and signed by the president and the judge advocate.

(2) The reasons for sentence shall be given by the judge advocate.

(3) The sentence, and any direction as to postponement or suspension of sentence, shall be announced by the president.

(4) If the court makes a recommendation to mercy, the reasons for making it shall be given by the president.

Conclusion of the trial

81.—(1) When each charge on the charge sheet or sheets has been disposed of, the president shall announce in open court that the trial is concluded.

(2) The judge advocate shall dissolve the court.

PART VII REVIEW OF COURT-MARTIAL FINDING AND SENTENCE

The petition

82.—(1) The period within which an accused may present a petition against finding or sentence or both in accordance with section 113(1) of the Act shall be 28 days following the day on which sentence is announced.

(2) A petition presented in accordance with section 113(1) of the Act shall be in writing and signed by the accused, or on his behalf by his legal adviser.

(3) Petitioners shall have regard to the guidance on the content of a petition contained in Schedule 5 to these Rules.

(4) A petition addressed to the Defence Council shall be treated as having been presented to the Defence Council if it is presented by the petitioner—

(a) to the Director of Personal Services (Army); or

(b) where the petitioner is—

(i) in custody or detention in any civil prison or institution, to the governor of the prison or institution;

(ii) detained in any military or air force establishment or in naval detention quarters, to the commandant of the establishment or quarters.

(5) A person to whom a petition is presented under paragraph (4)(b) above shall transmit it to the Director of Personal Services (Army) immediately upon receipt.

Reasons

83.  Where the reviewing authority completes a review in accordance with section 113 of the Act, it shall—

(a) if a petition has been presented in accordance with section 113(1) of the Act, or

(b) if it exercises any of its powers under section 113AA of the Act,

give reasons for its decision.

PART VIII MISCELLANEOUS

Application of the rules to civilians

84.—(1) In their application to any person to whom Part II of the Act is applied by section 209 of the Act, these Rules shall have effect subject to the modifications specified in Part I and the additional rules specified in Part II of Schedule 6 to these Rules.

(2) Part III of Schedule 6 to these Rules shall have effect in respect of the hearing by courts-martial of appeals against findings and sentences by Standing Civilian Courts.

Periodic review of arrest

85.—(1) In this rule, the “8 day report” means a report made in accordance with section 75(2) of the Act and this rule.

(2) The 8 day report on the necessity for further delay under section 75(2) shall be made to the person immediately superior in command on disciplinary matters to the commanding officer making the report.

(3) The 8 day report shall be made in writing and shall contain the following particulars—

(a) the name, service number, rank and unit of the person under arrest;

(b) the date upon which he was taken into arrest;

(c) whether he is in open or close arrest;

(d) the allegations against him which are being investigated;

(e) the reason why it is considered necessary to retain him in arrest;

(f) the reason why it is considered necessary to delay the convening of the court-martial for his trial; and

(g) where an allegation against him has been reported in the form of a charge to his commanding officer, the date on which that charge was reported.

Bankers' Books Evidence Act 1879

86.—(1) The power to make an order conferred by section 7 of the Bankers' Books Evidence Act 1879(7) may be exercised for the purposes of a court-martial—

(a) during the investigation of any offence and before the accused is notified that he is to be tried by court-martial, by the commanding officer of the accused;

(b) at preliminary proceedings and during the court-martial, by the judge advocate.

(2) The order shall be in the form set out in Schedule 2 to these Rules.

Custody of the record

87.  The period during which the record of the proceedings of a court-martial shall be kept in the custody of the Judge Advocate General shall be six years from the conclusion of the trial.

Imprisonment in default; manner of payment of fine

88.  For the purposes of section 71B of the Act, the manner in which a fine or part of a fine shall be paid or recovered is—

(a) where the offender is a person to whose pay section 144 of the Act applies, by deduction in accordance with that section from his pay or from any balance (whether or not representing pay) which may be due to him; or

(b) by payment by or on behalf of the offender to—

(i) the governor of the prison in the United Kingdom where the offender is confined; or

(ii) the Director of Personal Services (Army) or an officer authorised by him.

Circumstances not provided for

89.  In any circumstance not provided for by the Act or these Rules such course shall be adopted as appears best calculated to do justice.

Revocations and savings

90.—(1) Subject to paragraph (2) below, the Rules set out in Schedule 7 to these Rules are hereby revoked.

(2) The Rules set out in Schedule 7 shall continue to apply in relation to any trial by a court-martial which commenced before 1st April 1997 until the conclusion of that trial.

(3) The revocations shall not affect the validity of anything done under those Rules in relation to any proceedings pending at the commencement of these Rules.

Nicholas Soames

Minister of State, Ministry of Defence

12th February 1997