HC Deb 09 May 1996 vol 277 cc431-3

58.—(1) The Secretary of State may make rules with respect to—

  1. (a) the investigation, prosecution and trial of, and the awarding of punishment for, offences cognizable by courts-martial;
  2. (b) the review of findings and sentences of courts-martial.)

(2) Rules under this section may in particular make provision with respect to—

  1. (a) proceedings preliminary to trials by courts-martial;
  2. (b) the appointment of a judge advocate for any preliminary proceedings;
  3. (c) the delegation by court administration officers of any of their functions;
  4. (d) the ordering and composition of courts-martial;
  5. (e) the sittings, adjournment and dissolution of courts-martial;
  6. (f) the procedure to be followed in trials by courts-martial;
  7. (g) the functions of the clerk of the court and the exercise by him of those functions;
  8. (h) the representation of the accused at trials by courts-martial and any preliminary proceedings;
  9. (i) procuring the attendance of witnesses at such trials and any preliminary proceedings;
  10. (j) enabling a court-martial, in such cases and to such extent as may be prescribed by the rules, to amend a charge which is being tried by the court;
  11. (k) enabling a court-martial, 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, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;
  12. (1) directing that the powers conferred by section 7 of the Bankers' Books Evidence Act 1879 (which enables orders to be made for the inspection of bankers' books for the purposes of legal proceedings) may be exercised for the purposes of a court-martial (whether within or without the United Kingdom) by the commanding officer of the accused or a judge advocate, as well as by the court or a judge within the meaning of that Act;
  13. (m) the forms of orders and other documents to be made for the purposes of any provision of this Act or of rules under this section;
  14. (n) the cases in which, and extent to which, offences may be taken into consideration by a court-martial and the powers of the court in relation to any offences taken into consideration;
  15. (o) the recording of the proceedings of a court-martial;
  16. (p) the procedure to be followed on review of findings and sentences of courts-martial.

(3) Rules made by virtue of paragraph (j) of subsection (2) above shall secure that the power to amend charges is not exercisable in circumstances substantially different from those in which indictments are amendable by a civil court in England, or otherwise than subject to the like conditions, as nearly as circumstances admit, as those subject to which indictments are so amendable.

(4) Rules under this section which are inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.

(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."

58.—(1) Section 59 (challenges by accused to members of court-martial) shall be amended as follows.

(2) In subsection (1)—

  1. (a) after the words "Before the" there shall be inserted the words "officers appointed";
  2. (b) for the words "officers constituting" there shall be substituted the words "members of'; and
  3. (c) for the words from "being" to the end there shall be substituted the words "any of those members".

(3) In subsection (2)—

  1. (a) for the word "officer" there shall be substituted the word "member"; and
  2. (b) for the words from "considered" to the end there shall be substituted the words "determined by the judge advocate".

(4) For subsection (3) there shall be substituted the following subsection—

"(3) If an objection to the president is allowed, the court shall be dissolved."

(5) In subsection (4)—

  1. (a) for the words from "objection" to "the member" there shall be substituted the words "an objection to any other officer appointed a member of the court is allowed";
  2. (b) for the word "nominated" there shall be substituted the word "appointed"; and
  3. (c) for the words "section fifty—four" there shall be substituted the words "section 53C".

(6) After subsection (4) there shall be inserted the following subsection

"(4A) If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Chief Naval Judge Advocate."

(7) Subsection (5) shall cease to have effect.

(8) In subsection (6)—

  1. (a) after the words "After the" there shall be inserted the words "officers appointed"; and
  2. (b) for the words "Defence Council" there shall be substituted the words "reviewing authority".

59.—(1) Section 60 (administration of oaths) shall be amended as follows.

(2) For subsection (1) there shall be substituted the following subsection—

"(1) An oath shall be administered separately to each member of a court-martial, to the clerk of the court and any officer or other person in attendance for instruction, and to any person appointed to attend as interpreter."

(3) In subsection (5), for the words "General Orders" there shall be substituted the word "rules".

60. In section 61 (courts-martial to sit in open court), after subsection (2) there shall be added the following subsections—

  1. "(3) A court-martial shall sit in closed court while deliberating on their finding and sentence on any charge.
  2. (4) A court-martial may sit in closed court on any other deliberation amongst the members.
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  3. (5) Where a court-martial sits in closed court no person shall be present except the members of the court and such other persons as may be prescribed by rules under section 58 of this Act.
  4. (6) The judge advocate shall not be present while the other members of the court are deliberating on their finding on any charge.
  5. (7) Any ruling or direction of the judge advocate on a question of law (including a question of procedure or practice) shall be given in open court.
  6. (8) The judge advocate may determine, and give rulings on, questions of law (including questions of procedure and practice) in the absence of the other members of the court."

61.—(1) Section 62 (findings and sentences of courts-martial) shall be amended as follows.

(2) In subsection (1), for the words from "every" to "court-martial" there shall be substituted the words "the finding of a court-martial and any sentence awarded".

(3) After subsection (1) there shall be inserted the following subsection— (1A) The judge advocate shall not be entitled to vote on the finding.

(4) In subsection (3), after the word "mercy" there shall be inserted the words "and any reasons for the sentence".

(5) In subsection (4)—

  1. (a) after the word "court" in the second place it appears there shall be inserted the words "entitled to vote on the finding"; and
  2. (b) for the words "the members" in the second place they appear there shall be substituted the words "those members".

62. In section 64(1) (summoning of witnesses), for the words "clerk of the court" there shall be substituted the words "court administration officer".

63. After section 64 there shall be inserted the following sections—