The Armed Forces (Amendment of Court Rules) Rules 2023

Explanatory Note

(This note is not part of the Rules)

These Rules amend the Armed Forces (Service Civilian Court) Rules 2009 (S.I. 2009/1209), the Armed Forces (Summary Appeal Court) Rules 2009 (S.I. 2009/1211), the Armed Forces (Summary Hearings and Activation of Suspended Sentences) Rules 2009 (S.I. 2009/1216) and the Armed Forces (Court Martial) Rules (S.I. 2009/2041) so as to: make provision for variation of sentences; replace the requirement for the courts to be provided with information about relevant offences of which an offender was convicted in an EU member state with a requirement that they be provided with information about convictions imposed by courts outside the British Islands; and to permit the practice of “split summing up” in the Court Martial.

Part 2 of these Rules amends the Armed Forces (Service Civilian Court) Rules 2009 (the “SCC Rules”), so as to give the Service Civilian Court the power to vary sentences that it has imposed, where it subsequently transpires that it had no power to impose such a sentence. This power may be exercised within 56 days of the imposition of the original sentence, and may not be exercised if an appeal has been determined in respect of the original sentence.  Part 2 inserts a new Part 14A into the SCC Rules which sets out the procedure for variation proceedings. Part 14A is based on Part 15 of the Armed Forces (Court Martial) Rules (the “Court Martial Rules”), which already makes provision in relation to variation proceedings before the Court Martial, although changes have been made to the provisions inserted into the SCC Rules to reflect the differences in procedures between the two courts, and in particular the absence of lay members in the SCC.

Part 2 also amends rule 96 of the SCC Rules, so as to implement the changes made by section 17 of the Armed Forces Act 2021 (2021 c. 35) (the “2021 Act”). Section 17 removed the requirement for a court, when sentencing, to take into account convictions by courts in European Union member states and replaced it with a discretion to take into account convictions by courts from outside the British Islands. Rule 4 of these rules amends rule 96 of the SCC Rules to require, where practicable, the Director to provide the court with information about relevant convictions from outside the British Islands.

Part 3 amends the Armed Forces (Summary Appeal Court) Rules 2009 (the “SAC Rules”). The amendments are substantively the same as the amendments made to the SCC Rules. The most significant difference is that the new Part 12A introduced to the SAC Rules contains provisions dealing with lay members.  This reflects the fact that the Summary Appeal Court, like the Court Martial, can sit with lay members.  

Part 3 also amends rule 86 of the SAC rules to implement the changes made by section 17 of the 2021 Act. The changes are the same in substance as those made to rule 96 of the SCC rules.

Part 4 amends the Armed Forces (Summary Hearings and Activation of Relevant Sentences) Rules 2009 so as to allow commanding officers to vary sentences or rescind activation orders made by them following summary hearings. These powers must be exercised by the commanding officer who imposed the original sentence or activation order. Where the offender changes role or otherwise has a change in commanding officer following the imposition of a punishment, the punishment cannot be revised by the new commanding officer.  The intention of the new rules is to otherwise achieve the same effect as the procedures relating to variation that currently exist in the Court Martial Rules, and which have been added into the SAC and SCC Rules by these Rules.

Part 5 amends the Court Martial Rules. Rule 18 amends rule 108 (summing up) to allow for split summing up. The current version of rule 108 requires the judge advocate to sum up the evidence and give direction on the law after closing addresses. The amendments require the judge advocate to provide direction on the law at any time that it would assist the lay members to evaluate the evidence. This brings the Court Martial more closely into line with practice in the civilian justice system.

Rule 19 amends rule 114 of the Court Martial Rules so as to implement the changes made by section 17 of the 2021 Act. The changes are substantively the same as those made to rule 96 of the SSC Rules and rule 86 of the SAC Rules.

A full impact assessment has not been produced for this instrument as no, or no signifcant, impact on the private, voluntary sector or community bodies is foreseen.