The Armed Forces (Summary Appeal Court) Rules 2009

CHAPTER 2 U.K. APPEAL AGAINST PUNISHMENT

Application and interpretation of this Chapter U.K.

83.  This Chapter applies in relation to—

(a) any proceedings where the court has upheld a finding that a charge has been proved;

(b) any proceedings where the court has exercised its power under section 147(1)(b) to substitute for the finding concerned a finding that another charge has been proved; or

(c) an appeal against punishment.

Dispute on facts U.K.

84.—(1) In the case of an appeal against punishment, where there are disputed facts in the case, the judge advocate may direct that any issue of fact be tried by the court.

(2) The finding of the court on any such issue shall be determined by a majority of the votes of the members of the court.

(3) The finding of the court shall be announced by the judge advocate.

Pre-sentence report and previous convictions U.K.

85.—(1) Where the court administration officer has arranged for a pre-sentence report to be prepared in advance of the proceedings, he shall serve a copy on the Director and the appellant before the time appointed for the proceedings.

(2) Where the Director has obtained a record of the appellant's previous convictions in advance of the proceedings, he shall serve a copy on the appellant and the court administration officer before the time appointed for the proceedings.

Information before punishment U.K.

86.—(1) Where—

(a) the proceedings are an appeal against punishment, or

(b) previous sentencing proceedings in respect of the appellant were terminated,

the Director shall address the court on the facts of the case.

(2) Where practicable, the Director shall inform the court of—

(a) the appellant's age and rank or rate;

(b) the appellant's service record;

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

(d) any previous convictions of the appellant for—

(i) service offences,

(ii) offences under the law of any part of the [F1 British Islands], or

[F2 (iii) relevant offences of which the offender has been convicted by a court outside the British Islands,]

any sentence awarded in respect of any such offence, and whether any such conviction is spent for the purposes of the Rehabilitation of Offenders Act 1974 M1 ;

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

(f) the appellant's pay, terminal benefits and future pension entitlements;

(g) whether the commanding officer had extended powers for the purposes of sections 133(1)(a) or (2), 134(1), 135(1) or 136(1)(b); F3 ...

(h) the punishment awarded by the commanding officer F4 ... [F5 ; and]

[F6 (i) any statement of the effect of the offence on the victim, the victim’s family or others.]

(3) For the purposes of paragraph (2)(d) an offence is “relevant” if the act that constituted the offence would have constituted an offence under the law of any part of the United Kingdom if it had been done in that part at the time when the Director presents information to the court under this rule.

(4) Where the commanding officer made an activation order under section 193(3) (activation of a suspended sentence of service detention) the Director shall inform the court of that fact, of the previous offence by virtue of which the commanding officer had that power, and of the punishment awarded for that offence.

(5) Where the offender is not subject to service law but has formerly been so subject, paragraph (2) has effect as if—

(a) for the words “and rank or rate” in sub-paragraph (a) there were substituted “and his rank or rate when he last ceased to be subject to service law”; and

(b) before the word “pay” in sub-paragraph (f) there were inserted “employment,”.

Textual Amendments

F1 Words in rule 86(2)(d)(ii) substituted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 12(a)

F2 Rule 86(2)(d)(iii) substituted (13.11.2023) by The Armed Forces (Amendment of Court Rules) Rules 2023 (S.I. 2023/1097), rules 1(2), 12(b)

F3 Word in rule 86(2)(g) deleted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(a)

F4 Full stop in rule 86(2)(h) repealed (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(b)

F5 Word in rule 86(2)(h) inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(b)

F6 Rule 86(2)(i) inserted (16.11.2015) by The Armed Forces (Service Courts Rules) (Amendment) Rules 2015 (S.I. 2015/1812), rules 1, 7(c)

Marginal Citations

M1 1974 c. 53. Sections 2 and 6 of the Rehabilitation of Offenders Act 1974 were amended, and the Schedule inserted, by the Armed Forces Act 1996 (c. 46), section 13 and Schedule 4. Sections 1, 2 and 5, and the Schedule, were further amended by paragraphs 63 to 66 of Schedule 16 to the Act.

Mitigation of punishment U.K.

87.  The appellant may—

(a) call witnesses in mitigation of punishment or as to his character;

(b) produce to the court any document; and

(c) address the court in mitigation of punishment.

Pronouncement of punishment U.K.

88.—(1) The punishment shall be recorded in writing, dated and signed by the judge advocate.

(2) The judge advocate shall pronounce punishment and make the statement of reasons, and give the explanation, required by section 252(1).

(3) In this rule “punishment” has the same meaning as “sentence” in section 252.