(1) Subsections (2) and (3) apply where, at a hearing under section 105(1), the judge advocate does not authorise keeping the accused in service custody.
(2) Subject to subsection (3), the accused must be released from service custody without delay.
(3) The accused may be required to comply, before release or later, with such requirements as appear to the judge advocate to be necessary—
(a) to secure his attendance at any hearing in the proceedings against him;
(b) to secure that he does not commit an offence while released from custody;
(c) to secure that he does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person; or
(d) for his own protection or, if he is aged under 17, for his own welfare or in his own interests.
(4) On an application made—
(a) by or on behalf of the accused, or
(b) by the commanding officer of the accused,
any requirement imposed under subsection (3) (including such a requirement as previously varied under this subsection) may be varied or discharged by a judge advocate.
(5) A person on whom a requirement has been imposed by virtue of subsection (3)(a) commits an offence if, without reasonable excuse, he fails to attend any hearing to which the requirement relates.
(6) A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.
(1) Where the keeping of the accused in service custody is authorised by an order under section 105(2), it must be reviewed by a judge advocate not later than the end of the period for which it is authorised.
(2) If at any time it appears to the accused's commanding officer that the grounds on which such an order was made have ceased to exist, he must—
(a) release the accused from service custody; or
(b) request a review.
(3) Where a request is made under subsection (2)(b), a review must be carried out as soon as practicable.
(4) Sections 105(2) to (6), 106 and 107 apply in relation to a review as they apply in relation to a hearing under section 105(1); but the application of section 105(3) is subject to subsection (7).
(5) At the first review the accused may support an application for release from service custody with any argument as to fact or law (whether or not he has advanced that argument previously).
(6) At subsequent reviews the judge advocate need not hear arguments as to fact or law which have been heard previously.
(7) On a review at a hearing at which the accused is legally represented, the judge advocate may, if the accused consents, authorise the keeping of the accused in service custody for a period of not more than 28 days.
(8) In this section “review” means a review under subsection (1).
109 Custody during proceedings of Court Martial or Service Civilian Court
(1) In relation to a review under section 108(1) which takes place between—
(a) the arraignment of the accused before the Court Martial or the Service Civilian Court, and
(b) the conclusion of proceedings before the court,
section 105(2) to (6) (as applied by section 108(4)) apply with the following modifications.
(2) The reference in section 105(2) to conditions A to C is to be read as a reference to conditions A to D.
(3) Where the accused is awaiting sentence—
(a) references in section 105(4)(a) and (5) to an offence with which the accused is charged are to be read as references to the offence for which he is awaiting sentence; and
(b) section 105(4)(d) does not apply.
110 Arrest after charge or during proceedings by order of commanding officer
(1) The commanding officer of a person who—
(a) has been charged with, or is awaiting sentence for, a service offence, and
(b) is not in service custody,
may, if satisfied that taking that person into service custody is justified, give orders for his arrest.
(2) For the purposes of this section, taking a person into service custody is justified if there are reasonable grounds for suspecting that, if not taken into service custody, he would—
(a) fail to attend any hearing in the proceedings against him;
(b) commit an offence; or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
(3) Taking a person into service custody is also justified for the purposes of this section if—
(a) he has failed to attend any hearing in the proceedings against him;
(b) there are reasonable grounds for suspecting that he should be taken into service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests; or
(c) there are reasonable grounds for suspecting that—
(i) if not taken into service custody, he would fail to comply with a requirement imposed under section 107(3); or
(ii) he has failed to comply with such a requirement.
(4) A person arrested under subsection (1) who is kept in service custody—
(a) must as soon as is practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and
(b) on that review is to be dealt with as on a review under section 108(1) (see sections 108(4) to (8) and 109).
(5) Where a power of arrest is conferred on any person by virtue of this section, he may use reasonable force, if necessary, in the exercise of the power.
111 Arrest during proceedings at direction of court
(1) Where—
(a) a person has been arraigned before the Court Martial or the Service Civilian Court, and
(b) proceedings before the court have not concluded,
a judge advocate, if satisfied that taking him into service custody is justified, may direct the arrest of that person.
(2) Any person with power to arrest that person for a service offence has the same power, exercisable in the same way, to arrest him pursuant to a direction under subsection (1).
(3) Subsections (2) and (3) of section 110 apply for the purposes of this section.
(4) A person arrested under this section who is kept in service custody—
(a) must as soon as is practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and
(b) on that review is to be dealt with as on a review under section 108(1) (see sections 108(4) to (8) and 109).
(1) The Secretary of State may make rules with respect to proceedings—
(a) on an application under section 101;
(b) under section 105(1);
(c) on an application under section 107(4);
(d) on a review under section 108(1), 110(4), 111(4) or 171(2).
(2) Rules under this section may in particular make provision—
(a) with respect to arrangements preliminary to the proceedings;
(b) with respect to the representation of the person to whom the proceedings relate;
(c) with respect to evidence, including the admissibility of evidence;
(d) for procuring the attendance of witnesses;
(e) with respect to the immunities and privileges of witnesses;
(f) with respect to oaths and affirmations;
(g) with respect to circumstances in which a review under section 108(1), 110(4), 111(4) or 171(2) may be carried out without a hearing;
(h) with respect to the use for the purposes of the proceedings of live television or telephone links or similar arrangements, including the use of such links or other arrangements as a means of satisfying any requirement imposed by this Act for a person to be brought before a judge advocate;
(i) for the appointment of persons to discharge administrative functions under the rules.
113 CO to ensure service police aware of possibility serious offence committed
(1) If an officer becomes aware of an allegation or circumstances within subsection (2), he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.
(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a Schedule 2 offence has or may have been committed by a relevant person.
(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).
(4) In this Chapter “Schedule 2 offence” means a service offence listed in Schedule 2.
(5) The Secretary of State may by order amend Schedule 2.
114 CO to ensure service police aware of certain circumstances
(1) If an officer of a prescribed description becomes aware of circumstances of a prescribed description, he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.
(2) In this section “prescribed” means prescribed by regulations under section 128.
115 Duty of CO with respect to investigation of service offences
(1) This section applies where—
(a) an officer becomes aware of an allegation or circumstances within subsection (2); and
(b) the officer is not required by section 113(1) or 114(1) to ensure that a service police force or the tri-service serious crime unit is aware of the matter.
(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a service offence has or may have been committed by a relevant person.
(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).
(4) The officer must either—
(a) ensure that the matter is investigated in such way and to such extent as is appropriate; or
(b) ensure, as soon as is reasonably practicable, that a service police force or the tri-service serious crime unit is aware of the matter.
(5) Subsection (4) does not apply if the matter has already been investigated in such way and to such extent as is appropriate.
115A Provost Marshal's duty in relation to independence of investigations
(1) Subsection (2) applies in relation to each service police force.
(2) The Provost Marshal of the force has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the force are free from improper interference.
(2A) The Provost Marshal for serious crime has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.
(3) “Improper interference” includes, in particular, any attempt by a person who is not a service policeman to direct an investigation which is being carried out by the force or (as the case may be) the unit.
116 Referral of case following investigation by service or civilian police
(1) This section applies where—
(a) a service police force or the tri-service serious crime unit has investigated an allegation which indicates, or circumstances which indicate, that a service offence has or may have been committed; or
(b) a UK police force or overseas police force has investigated such an allegation or such circumstances and has referred the matter to a service police force or the tri-service serious crime unit.
(2) If—
(a) a service policeman considers that there is sufficient evidence to charge a person with a service offence that is not a CO offence, or
(b) a service policeman considers that there is sufficient evidence to charge a person with a service offence that is a CO offence, and is aware of circumstances of a description prescribed by regulations under section 128 for the purposes of this paragraph,
he must refer the case to the Director of Service Prosecutions (“the Director”).
(3) If—
(a) a service policeman considers that there is sufficient evidence to charge a person with a service offence, ...
(b) subsection (2) does not apply , and
(c) section 117(5) (referral of connected cases to DSP) does not apply,
he must refer the case to the person's commanding officer.
(4) Subsection (4A) applies if—
(a) the allegation or circumstances would indicate to a reasonable person that a person has committed, or might have committed, a service offence which is not one that may be dealt with at a summary hearing (see section 53), or
(b) any circumstances investigated are circumstances of a description prescribed by regulations under section 128 for the purposes of section 114,
and a service policeman proposes not to refer the case to the Director under subsection (2) or section 117(5).
(4A) If this subsection applies, the service policeman must consult the Director as soon as is reasonably practicable (and before any referral of the case under subsection (3)).
(5) For the purposes of this section—
(a) there is sufficient evidence to charge a person with an offence if, were the evidence suggesting that the person committed the offence to be adduced in proceedings for the offence, the person could properly be convicted , and
(b) a service offence committed by a person is a “CO offence” if a charge against the person in respect of the offence is capable of being heard summarily by the person's commanding officer (see section 52).
117 Section 116: position where investigation is of multiple offences or offenders
(1) This section applies where the investigation mentioned in section 116(1) relates to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons.
(2) Each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.
(3) Subsections (4) and (5) apply if—
(a) at least one of the cases has been, or must be, referred to the Director of Service Prosecutions (“the Director”) under section 116(2),
(b) a service policeman considers that there is sufficient evidence to charge a person with a service offence in another of the cases,
(c) that case is not required to be referred to the Director under section 116(2), and
(d) the service policeman considers that there is, or may be, a connection between a case falling within paragraph (a) and the case falling within paragraph (c), whether direct or indirect, that makes it appropriate for both cases to be referred to the Director.
(4) The service policeman must consult the Director about the existence and nature of the connection between those cases.
(5) Following that consultation, if the service policeman considers that there is a connection described in subsection (3)(d), the service policeman must refer the case falling within subsection (3)(c) to the Director.
(6) The reference in this section to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5)(a).
118 Duty of service policeman to notify CO of referral to DSP
(1) This section applies where a service policeman considers that there is sufficient evidence to charge a person (“A”) with a service offence and refers the case under section 116(2) or 117(5) to the Director of Service Prosecutions.
(2) The service policeman must as soon as reasonably practicable after referring the case—
(a) notify A's commanding officer of the referral; and
(b) provide prescribed documents to A's commanding officer.
(3) A notification under subsection (2)(a) must specify the service offence that the service policeman considers there is sufficient evidence to charge A with.
(3A) Where that offence is a CO offence, the notification must—
(a) specify whether the case is referred under section 116(2) or 117(5), and
(b) if the case is referred under section 116(2), specify the circumstances that bring the case within section 116(2)(b).
(4) In this section—
(a) any reference to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5)(a);
(aa) any reference to a CO offence is to be read in accordance with section 116(5)(b);
(b) “prescribed documents” means documents prescribed for the purposes of subsection (2)(b) by regulations under section 128.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
119 Circumstances in which CO has power to charge etc
(1) This section sets out the circumstances in which a commanding officer has initial powers (defined by section 120) in respect of a case.
(2) If a commanding officer of a person becomes aware of an allegation which indicates, or circumstances which indicate, that the person has or may have committed a service offence, he has initial powers in respect of the case.
(3) Subsection (2) does not apply if the allegation or circumstances—
(a) give or have given rise to the duty under section 113(1) or 114(1);
(b) are being or have been investigated by a service police force or the tri-service serious crime unit; or
(c) are being or have been investigated by a UK police force or overseas police force, and it appears to the commanding officer that that force may refer the matter to the service police.
(4) A commanding officer has initial powers in respect of a case which a service policeman has referred to him under section 116(3) (referral of case following investigation by service or civilian police).
(5) A commanding officer has initial powers in respect of a case which the Director of Service Prosecutions has referred to him under section 121(4) (referral of case by DSP).
(6) If an allegation or circumstances mentioned in subsection (2) relate to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons, each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.
(1) Subsections (2) and (3) apply where under section 119 a commanding officer has initial powers in respect of a case.
(2) The officer may bring, in respect of the case, one or more charges that are capable of being heard summarily (see section 52).
(3) The officer may refer the case to the Director of Service Prosecutions.
(4) A charge brought under subsection (2) is to be regarded for the purposes of this Part as allocated for summary hearing.
(5) Where an officer has referred a case under subsection (3), the officer must also refer to the Director of Service Prosecutions any other case—
(a) which is of a description prescribed by regulations under section 128 for the purposes of this subsection, and
(b) as respects which the officer has initial powers,
....
121 Power of DSP to charge or direct bringing of charge etc
(1) The powers in subsections (1A) to (5) are exercisable by the Director of Service Prosecutions (“the Director”) in respect of a case which has been referred to him under—
(a) section 116(2) (referral of case following investigation by service or civilian police);
(aa) section 117(5) (referral of connected cases); or
(b) section 120(3) or (5) (referral of case by CO).
(1A) The Director may bring a charge or charges against the person concerned in respect of the case.
(1B) If—
(a) the Director brings a charge under subsection (1A), and
(b) the Service Civilian Court has jurisdiction to try the charge,
the Director may allocate the charge for trial by that court.
(2) The Director may direct the commanding officer of the person concerned to bring, in respect of the case, such charge or charges against him as may be specified in the direction.
(3) If—
(a) the Director makes a direction under subsection (2), and
(b) the Service Civilian Court has jurisdiction to try the charge specified in the direction,
the Director may allocate the charge for trial by that court.
(4) The Director may refer the case to the commanding officer of the person concerned, but only if he has decided that it would not be appropriate to bring a charge under subsection (1A) or to make a direction under subsection (2) in respect of it.
(5) The Director may make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of any offence as regards which he could bring a charge under subsection (1A) or make a direction under subsection (2).
(1) Where a direction under section 121(2) is given to an officer, he must bring the charge or charges specified in the direction.
(2) A charge brought by the Director of Service Prosecutions (“the Director”) under section 121(1A) or by an officer as a result of a direction under section 121(2)—
(a) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial if the Director allocated it (under section 121(1B) or (3)) for trial by that court;
(b) otherwise, is to be regarded for the purposes of this Part as allocated for Court Martial trial.
(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for summary hearing.
(2) The accused's commanding officer may—
(a) amend the charge;
(b) substitute for the charge another charge against the accused;
(c) bring an additional charge against the accused;
(d) discontinue proceedings on the charge;
(e) refer the charge to the Director of Service Prosecutions.
(3) The powers under subsection (2) may be exercised before or after the start of any summary hearing of the charge.
(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be capable of being heard summarily (see section 52).
(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.
(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for summary hearing.
(7) Where a charge is referred under subsection (2)(e) to the Director of Service Prosecutions, the charge and any other charge brought in respect of the same case are to be regarded for the purposes of this Part as allocated for Court Martial trial.
124 CO to hear charge allocated for summary hearing
(1) This section applies in respect of a charge which is regarded for the purposes of this Part as allocated for summary hearing.
(2) The accused's commanding officer must hear the charge summarily unless—
(a) he exercises his powers under section 123(2)(b), (d) or (e) in respect of the charge (substitution of charge, discontinuance of proceedings, or referral to DSP); or
(b) the accused elects Court Martial trial of the charge (see section 129).
(3) Subsection (2) is subject to sections 52 (charges capable of being heard summarily) and 54 (charges which may be heard summarily only with permission or by senior officer).
125 Powers of DSP in respect of charge allocated for Court Martial trial
(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Court Martial trial.
(2) The Director of Service Prosecutions may—
(a) amend the charge;
(b) substitute for the charge another charge against the accused;
(c) bring an additional charge against the accused;
(d) discontinue proceedings on the charge;
(e) refer the charge to the accused's commanding officer, but only if the charge is capable of being heard summarily (see section 52);
(f) allocate the charge for trial by the Service Civilian Court, but only if the charge is one that that court has jurisdiction to try;
(g) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.
(3) Court Martial rules may restrict the exercise of powers under subsection (2)—
(a) after arraignment by the Court Martial; or
(b) after referral of the charge to the Court Martial under section 279(4) or 280(3) (referral by SCC); ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.
(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Court Martial trial.
(7) Any charge referred under subsection (2)(e) to a commanding officer is to be regarded for the purposes of this Part as allocated for summary hearing.
(8) Any charge allocated under subsection (2)(f) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.
126 Powers of DSP in respect of charge allocated for SCC trial
(1) This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Service Civilian Court trial.
(2) The Director of Service Prosecutions may—
(a) amend the charge;
(b) substitute for the charge another charge against the accused;
(c) bring an additional charge against the accused;
(d) discontinue proceedings on the charge;
(e) allocate the charge for trial by the Court Martial;
(f) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.
(3) SCC rules may restrict the exercise, after a decision by the Service Civilian Court under section 279 as to whether it should try the charge, of powers under subsection (2).
(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be one that the Service Civilian Court has jurisdiction to try.
(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.
(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.
(7) Any charge allocated under subsection (2)(e) is to be regarded for the purposes of this Part as allocated for Court Martial trial.
(1) A direction under this subsection is a direction that for the purposes of section 63 the person specified in the direction is to be treated as acquitted of the service offence so specified.
(2) A direction under this subsection is a direction that for the purposes of sections 63 and 64 the person specified in the direction is to be treated as acquitted of the service offence so specified.
(1) The Secretary of State may by regulations make such provision as he considers necessary or expedient for the purposes of any provision of this Part.
(2) Regulations under this section may in particular make provision—
(a) for the delegation by a commanding officer of any of his functions;
(b) as to the bringing, amendment and substitution of charges;
(c) as to the referral of cases and charges, including provision requiring a commanding officer in prescribed circumstances to refer a case or charge to the Director of Service Prosecutions;
(d) as to the examination of witnesses for the purpose of obtaining information of assistance to the Director of Service Prosecutions in connection with his functions under Chapter 2;
(e) requiring prescribed persons to be notified of prescribed matters.
(3) In subsection (2) “prescribed” means prescribed by regulations under this section.
(1) Before hearing a charge summarily the commanding officer must, in the way specified by rules under section 153, give the accused the opportunity of electing Court Martial trial of the charge.
(2) If the accused elects Court Martial trial of the charge—
(a) the commanding officer must refer the charge to the Director of Service Prosecutions; and
(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.
(3) Where two or more charges against the accused are to be heard summarily together, an election for Court Martial trial in respect of any of the charges takes effect as an election in respect of all of them.
(4) Subsection (5) applies if an opportunity to elect Court Martial trial of a charge (“the original charge”) has been given under subsection (1) and subsequently—
(a) the charge is amended;
(b) another charge is substituted for it; or
(c) an additional charge is brought.
(5) Subsection (1) applies in relation to the amended, substituted or additional charge; and if the amendment, substitution or addition takes place after the start of the summary hearing, that subsection has effect in relation to the charge as if the reference to hearing a charge summarily were to proceeding with the hearing.
(6) In subsection (4)—
(a) “amended” means amended under section 123(2)(a) or, in the case of a charge referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, amended under section 125(2)(a) and referred to the commanding officer under section 125(2)(e);
(b) “substituted” means substituted under section 123(2)(b) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, substituted under section 125(2)(b) and referred to the commanding officer under section 125(2)(e);
(c) “brought”, in relation to an additional charge, means brought under section 123(2)(c) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, brought under section 125(2)(c) and referred to the commanding officer under section 125(2)(e).
(7) Subsection (8) applies where—
(a) an opportunity to elect Court Martial trial of a charge has been given under this section;
(b) the accused has not elected Court Martial trial; and
(c) at a time after the giving of the opportunity to elect, the commanding officer obtains extended powers for the purposes of any provision of section 133, 134, 135 or 194.
(8) The provisions of this section requiring the giving of an opportunity to elect Court Martial trial of the charge shall apply again.
130 Further consequences of election for Court Martial trial
(1) This section applies where the accused has elected Court Martial trial of a charge.
(2) The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused refer to a commanding officer, under section 125(2)(e)—
(a) that charge (whether or not amended by the Director), or
(b) any charge substituted under section 125(2)(b) or additionally brought under section 125(2)(c).
(3) Where a charge mentioned in subsection (2) is referred under section 125(2)(e), the accused may not elect Court Martial trial of the charge (and accordingly section 129(1) does not apply in respect of the charge); but this does not apply —
(a) where the charge is amended after referral;
(b) to any charge substituted for or added to the charge after referral; or
(c) where extended powers for the purposes of any provision of section 133, 134, 135 or 194 are obtained after referral.
130A Restrictions on DSP's powers to substitute or add charges after election
(1) This section applies where—
(a) a charge is for the time being regarded for the purposes of Part 5 as allocated for Court Martial trial; and
(b) the charge is in respect of an offence which would be a relevant offence for the purposes of Schedule 3A (sentencing powers of Court Martial where election for trial by that court) if the accused were convicted of it.
(2) The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused substitute under section 125(2)(b)—
(a) a charge in respect of an offence which is not one that may be dealt with at a summary hearing (see section 53); or
(b) a charge in respect of an offence within section 54(2) (offences that may be dealt with summarily only with permission or by senior officer), except where the relevant charge was in respect of such an offence.
(3) In subsection (2)(b) “relevant charge” means—
(a) in relation to a case A offence or a case B offence (within the meaning of Schedule 3A), the charge in respect of which the accused elected Court Martial trial; and
(b) in relation to a case C offence or a case D offence (within the meaning of Schedule 3A), the charge referred as mentioned in paragraph 4(c) of that Schedule.
(4) The Director may not without the written consent of the accused bring under section 125(2)(c) a charge in addition to the charge.
(5) In construing Part 1 of Schedule 3A (relevant offences) for the purposes of this section, paragraphs 3(b) and 5(c) of that Schedule are to be disregarded.
(1) This section applies where a commanding officer hears a charge summarily.
(2) The commanding officer may dismiss the charge at any stage of the hearing; but this is subject to subsection (4) and to any provision of rules under section 153.
(3) If the commanding officer determines that the charge has not been proved, he must dismiss the charge.
(4) If the commanding officer determines that the charge has been proved, he must—
(a) record a finding that the charge has been proved; and
(b) award one or more of the punishments authorised by section 132.
(5) Where the commanding officer records findings that two or more charges against a person have been proved, the award he must make under subsection (4) is a single award (consisting of one or more of those punishments) in respect of the charges taken together.
(6) Nothing in this section authorises a commanding officer to include in an award two or more punishments within the same row of the Table in section 132, except where those punishments are—
(a) different minor punishments which regulations made under row 7 of the Table permit to be awarded together; or
(b) service compensation orders.
(1) The second column of the following Table lists the punishments that may be awarded by a commanding officer who has heard a charge summarily, subject in the case of each punishment to any limitation shown in the third column opposite it.
TABLE
Row Number | Punishment | Limitation
1 | detention for a term not exceeding the maximum allowed by section 133 | only if the person being punished is of or below the rank of— leading rate; corporal in the Royal Marines; lance corporal or lance bombardier in any of Her Majesty’s military forces; corporal in any of Her Majesty's air forces (see also subsection (1A))
2 | forfeiture of a specified term of seniority or of all seniority | only if the person being punished is an officer, and only in accordance with section 134
3 | reduction in rank, or disrating | only if the person being punished is a warrant officer or non-commissioned officer, only in accordance with section 135, and not to an extent prohibited by regulations under section 135(4)
4 | a fine not exceeding the maximum amount allowed by section 136
5 | a severe reprimand or a reprimand | only if the person being punished is an officer, warrant officer or non-commissioned officer
6 | a service supervision and punishment order (defined by section 173) | only if the person being punished is an able rate, marine, soldier or airman
7 | such minor punishments as may from time to time be authorised by regulations made by the Defence Council
8 | a service compensation order (defined by section 175) of an amount not exceeding the maximum allowed by section 137
9 | a deprivation order (defined by section 177B) | only if section 177C permits
(1A) In row 1 of the Table, in paragraph (c) of the entry in the third column, in relation to the Royal Air Force Regiment, the reference to a corporal is to be read as a reference to a lance corporal.
(2) Subsection (1) is subject to (in particular)—
(a) section 138 (prohibited combinations of punishments) and any regulations made under that section;
(b) Chapter 1 of Part 9 (general provisions about sentencing).
(3) Where regulations under row 7 of the Table authorise a minor punishment, they may—
(a) confer on the offender's commanding officer a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;
(b) confer on the offender's commanding officer the function of deciding the details of the punishment;
(c) provide for the delegation by the commanding officer of any of his functions under the regulations.
(1) The maximum term of detention that a commanding officer may award under row 1 of the Table in section 132 to an able rate, marine, soldier or airman is—
(a) 90 days if the commanding officer has extended powers for the purposes of this subsection;
(b) otherwise, 28 days.
(2) A commanding officer may not award detention under row 1 of the Table in section 132 to a person of any of the following ranks—
(a) leading rate,
(aa) corporal in the Royal Marines;
(b) lance corporal or lance bombardier in any of Her Majesty’s military forces,
(c) corporal in any of Her Majesty's air forces,
unless the commanding officer has extended powers for the purposes of this subsection; and the maximum term of detention that a commanding officer may (if he has those powers) award such a person is 90 days.
(2A) In relation to the Royal Air Force Regiment, the reference in subsection (2)(c) to a corporal is to be read as a reference to a lance corporal.
(3) A commanding officer has extended powers for the purposes of subsection (1) or (2) if he has, within the relevant time (defined by section 135A) —
(a) applied to higher authority for extended powers for the purposes of that subsection; and
(b) been notified by higher authority that his application has been granted.
(4) A commanding officer also has extended powers for the purposes of subsection (1) or (2) if he is of or above the rank of rear admiral, major-general or air vice-marshal.
134 Forfeiture of seniority: requirement for approval
(1) A commanding officer may not award forfeiture of seniority under row 2 of the Table in section 132 unless he has extended powers for the purposes of this section.
(2) A commanding officer has extended powers for the purposes of this section if he has, within the relevant time (defined by section 135A) —
(a) applied to higher authority for extended powers for the purposes of this section; and
(b) been notified by higher authority that his application has been granted.
(3) A commanding officer also has extended powers for the purposes of this section if he is of or above the rank of rear admiral, major-general or air vice-marshal.
(1) A commanding officer may not award reduction in rank, or disrating, under row 3 of the Table in section 132 unless—
(a) he has extended powers for the purposes of this subsection; or
(b) the person being punished is a lance corporal or lance bombardier.
(2) The reduction in rank or disrating that a commanding officer may award is reduction or disrating—
(a) by one acting rank or rate; or
(b) if the person being punished has no acting rank or rate, by one substantive rank or rate.
(3) Where the person being punished is a corporal in any of Her Majesty's air forces, the reduction in rank authorised by subsection (2)(a) or (b) (as the case may be) is reduction to the highest rank the person has held in that force as an airman; but this is subject to subsection (3A).
(3A) In relation to the Royal Air Force Regiment, the reference in subsection (3) to a corporal is to be read as a reference to a lance corporal.
(4) The Defence Council may by regulations provide that persons of a trade or branch specified in the regulations may not be reduced or disrated under section 132 below a rank or rate so specified.
(5) A commanding officer has extended powers for the purposes of subsection (1) if he has, within the relevant time (defined by section 135A) —
(a) applied to higher authority for extended powers for the purposes of that subsection; and
(b) been notified by higher authority that his application has been granted.
(6) A commanding officer also has extended powers for the purposes of subsection (1) if he is of or above the rank of rear admiral, major-general or air vice-marshal.
(1) In each of sections 133(3), 134(2) and 135(5), “within the relevant time” means before the start of the summary hearing; but this is subject to subsections (2) and (3).
(2) Subsection (3) applies where after the start of a summary hearing—
(a) a charge is amended under section 123(2)(a);
(b) a charge is substituted for another charge under section 123(2)(b); or
(c) an additional charge is brought under section 123(2)(c).
(3) Any application for or grant of extended powers which is made in the period between—
(a) the making of the amendment, substitution or addition, and
(b) the time when the summary hearing is proceeded with after the amendment, substitution or addition,
is to be treated for the purposes of sections 133(3), 134(2) and 135(5) as made within the relevant time.
(1) The maximum amount of a fine that a commanding officer may award is 28 days' pay.
(4) For the purposes of this section a day's pay is—
(a) subject to paragraph (b), the gross pay which is (or would apart from any forfeiture be) issuable to the offender in respect of the day when the punishment is awarded;
(b) if the offender is a special member of a reserve force, the gross pay which would have been issuable to him in respect of that day if he had been an ordinary member of that reserve force of the same rank or rate.
(5) If the offender is a member of a reserve force who is not on duty on the day the punishment is awarded, for the purposes of subsection (4) he is to be taken to have been on duty then.
(6) In subsection (4) “special member” and “ordinary member” have the same meanings as in the Reserve Forces Act 1996 (c. 14).
(1) Where an award by a commanding officer consists of or includes one service compensation order, the compensation to be paid under the order must not exceed £1,000.
(2) Where an award by a commanding officer consists of or includes two or more service compensation orders, the total compensation to be paid under the orders must not exceed £1,000.
(3) If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum for the time being specified in subsections (1) and (2) such other sum as appears to him justified by the change.
(4) In subsection (3) “the relevant date” means—
(a) the date of the coming into force of this section; or
(b) where the sum for the time being specified in subsections (1) and (2) was substituted for a sum previously so specified, the date of the substitution.
(1) Subsections (2) to (6) apply where a commanding officer awards punishment in respect of an offender.
(2) If he awards detention, the only additional punishments he may award are—
(a) reduction in rank or disrating (subject to subsection (8));
(b) a service compensation order.
(4) If he awards forfeiture of seniority, the only additional punishments he may award are—
(a) a severe reprimand or a reprimand;
(b) a service compensation order.
(5) If he awards reduction in rank or disrating, the only additional punishments he may award are—
(a) a suspended sentence of service detention (subject to subsection (8));
(b) a service compensation order.
(6) If he awards a fine, he may not also award a service supervision and punishment order.
(7) Regulations under row 7 of the Table in section 132 may make provision, as respects any punishment authorised by those regulations, prohibiting that punishment from being awarded with any other punishment (whether or not so authorised) specified by the regulations.
(8) Nothing in this section authorises a commanding officer to award a particular punishment where the award of that punishment is prohibited otherwise than by this section.
(9) References in this section to a service compensation order include references to two or more such orders.
(1) Where a commanding officer awards punishment in respect of a single offence, nothing in sections 131 to 138 authorises him—
(a) to award a punishment of a kind which the Court Martial could not award for that offence;
(b) if the offence is under section 42 (criminal conduct), to award a fine exceeding the maximum allowed by section 42(4).
(2) Where a commanding officer awards punishment in respect of two or more offences—
(a) nothing in sections 131 to 138 authorises him to award a punishment of a particular kind unless it is one which the Court Martial could award for at least one of the offences; and
(b) if all the offences are under section 42 and the maximum fine allowed by section 136 exceeds the permitted maximum, nothing in sections 131 to 138 authorises him to award a fine exceeding the permitted maximum.
(3) The permitted maximum is the total of the fines that under section 42(4) the commanding officer could award in respect of the offences if he had power to make separate awards in respect of them.
(1) There shall be a court, to be known as the Summary Appeal Court.
(2) The Summary Appeal Court may sit in any place, whether within or outside the United Kingdom.
(1) A person in respect of whom—
(a) a charge has been heard summarily, and
(b) a finding that the charge has been proved has been recorded,
may appeal to the Summary Appeal Court against the finding or against the punishment awarded.
(2) Subject to subsection (3), any appeal under this section must be brought—
(a) within the period of 14 days beginning with the date on which the punishment was awarded (“the initial period”); or
(b) within such longer period as the court may allow by leave given before the end of the initial period.
(3) The court may at any later time give leave for an appeal to be brought within such period as it may allow.
(4) The respondent to an appeal under this section is the Director of Service Prosecutions.
(1) For the purpose of hearing an appeal under section 141, the Summary Appeal Court is to consist of—
(a) a judge advocate;
(b) an officer qualified for membership under section 143 and not ineligible by virtue of section 144; and
(c) a third person who is an officer or warrant officer so qualified and not so ineligible.
(2) Subsection (1) is subject to any provision made by SAC rules.
(3) The judge advocate for an appeal under section 141 is to be specified by or on behalf of the Judge Advocate General.
(4) The other members of the court for an appeal under section 141 are to be specified by or on behalf of the court administration officer.
143 Officers and warrant officers qualified for membership of the SAC
(1) Subject to subsections (2) to (4), an officer or warrant officer is qualified for membership of the Summary Appeal Court if he is subject to service law.
(2) An officer is not qualified for membership of the court unless—
(a) he has held a commission in any of Her Majesty's forces for at least three years, or for periods amounting in the aggregate to at least three years; or
(b) immediately before receiving his commission, he was a warrant officer in any of those forces.
(3) A warrant officer is not qualified for membership of the court if he is an acting warrant officer.
(4) An officer or warrant officer is not qualified for membership of the court if—
(a) he is a member of the Military Court Service;
(b) he is a member of or on the staff of the Service Prosecuting Authority;
(c) he is a service policeman;
(d) he is a member of the Royal Army Chaplains' Department or the Royal Air Force Chaplains' Branch;
(e) he has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);
(f) he is an advocate or solicitor in Scotland;
(g) he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or
(h) he has in a relevant territory 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.
(5) In this section “relevant territory” means—
(a) any of the Channel Islands;
(b) the Isle of Man;
(c) a Commonwealth country; or
(d) a British overseas territory.