The Armed Forces (Court Martial) Rules 2009

Made: 21st July 2009

Coming into force: 31st October 2009

The Secretary of State, in exercise of the powers conferred by section 19(5) of the Court Martial Appeals Act 1968 , sections 111, 113, 132 and 135 of, paragraph 5 of Schedule 6 to, and paragraph 2(6) of Schedule 7 to, the Criminal Justice Act 2003 , and sections 125(3), 155, 157(4), 158, 163, 165 and 286(4) of the Armed Forces Act 2006 , makes the following Rules:

In accordance with section 373(3) of the Armed Forces Act 2006 a draft of this instrument was laid before, and approved by resolution of, each House of Parliament.

PART 1 — PRELIMINARY

Citation and commencement

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These Rules may be cited as the Armed Forces (Court Martial) Rules 2009 and shall come into force on 31st October 2009.

Interpretation: proceedings and parties

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• (1) Unless otherwise stated, any reference in these Rules to proceedings includes—

• (a) preliminary proceedings,

• (b) trial proceedings,

• (c) sentencing proceedings,

• (d) variation proceedings,

• (e) appellate proceedings,

• (f) activation proceedings, and

• (g) ancillary proceedings,

but does not include the exercise of any power of the court otherwise than at a hearing.

• (2) In these Rules—

• “activation order” means— an order under paragraph 8(2)(a) or (b) of Schedule 12 to the 2003 Act (activation of suspended sentence of imprisonment); an order under section 191(3) (activation of suspended sentence of service detention); or an order under section 214(3) (reactivation of detention and training order);

• “activation proceedings” means proceedings for the making of an activation order, but does not include sentencing proceedings in which the court has power to make such an order;

• “ancillary proceedings” means— a hearing under rule 127 of an application under section 285(4) for leave to appeal out of time from the Service Civilian Court; and proceedings under any provision of Part 18;

• “appellate proceedings” means proceedings of the court (other than sentencing proceedings) on appeal from the Service Civilian Court;

• “community order proceedings” means any proceedings under Chapter 1 of Part 18;

• “preliminary proceedings” means any proceedings of the court held for the purpose of arraigning a defendant on a charge or giving directions, orders or rulings for the purpose of trial proceedings;

• “related proceedings”, in relation to preliminary proceedings, means— trial proceedings in respect of any charge to which the preliminary proceedings relate; any further preliminary proceedings in relation to such trial proceedings; and any sentencing proceedings in respect of any offence found proved in such trial proceedings, or as respects which the offender pleads guilty in the preliminary proceedings or related proceedings;

• “sentencing proceedings” means proceedings for the sentencing of— a person convicted by the court on a plea of guilty or in trial or appellate proceedings, or a person convicted by the Service Civilian Court who appeals against sentence, and does not include variation proceedings;

• “trial proceedings” means proceedings for the trial of a charge by the court (including proceedings authorised by an order of the Appeal Court under section 19 of the 1968 Act), and does not include sentencing proceedings;

• “variation proceedings” means proceedings under Part 15.

• (3) References in these Rules to a party to any proceedings are to—

• (a) a person to whom the proceedings relate;

• (b) the Director; and

• (c) where the proceedings are for the hearing of an application (and the applicant is not a person to whom the proceedings relate), the applicant.

• (4) References in these Rules to a person to whom proceedings relate are to—

• (a) in the case of preliminary or trial proceedings, a defendant;

• (b) in the case of sentencing proceedings, an offender who falls to be sentenced;

• (c) in the case of variation proceedings, an offender in respect of whom a sentence which falls to be varied has been passed;

• (d) in the case of appellate proceedings, an appellant;

• (e) in the case of activation proceedings, the offender in respect of whom the court has power to make an activation order;

• (f) in the case of community order proceedings, the offender in respect of whom the overseas community order was made;

• (g) in the case of a hearing of an application under section 232(1) for the variation or revocation of a service restraining order, the person in respect of whom the service restraining order was made;

• (h) in the case of a hearing of any other application (other than community order proceedings), the applicant;

• (i) in the case of proceedings under section 229 (service restraining orders) in respect of a case remitted to the court by the Appeal Court under section 230(3), the person whose appeal was allowed; and

• (j) in the case of a hearing under rule 151 (certification of contempt of court), the person whose offence the court is to consider certifying.

• (5) In these Rules—

• “the Director” means the Director of Service Prosecutions;

• “defendant” means a person against whom a charge allocated for Court Martial trial has been brought.

Interpretation: general

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• (1) Any reference in these Rules to a numbered section is to that section of the 2006 Act unless otherwise stated.

• (2) In these Rules—

• “the 2006 Act” means the Armed Forces Act 2006;

• “the 1967 Act” means the Criminal Justice Act 1967[^f00004];

• “the 1968 Act” means the Court Martial Appeals Act 1968;

• “the 1999 Act” means the Youth Justice and Criminal Evidence Act 1999[^f00005];

• “the 2003 Act” means the Criminal Justice Act 2003;

• “the CPIA Order” means the Criminal Procedure and Investigations Act 1996 (Application to the Armed Forces) Order 2009[^f00006];

• “advance information” has the meaning given by rule 43(2);

• “allocated for Court Martial trial” means regarded for the purposes of Part 5 of the 2006 Act as allocated for Court Martial trial;

• “the Appeal Court” means the Court Martial Appeal Court;

• “bad character” has the meaning given by section 98 of the 2003 Act;

• “civilian police force” means a UK police force or a British overseas territory police force;

• “the court” means the Court Martial;

• “DX” means document exchange;

• “detention and training order” means an order under section 211;

• “the judge advocate”, in relation to any proceedings, means the judge advocate specified for the proceedings under section 155(5);

• “the lay members” has the same meaning as in section 155;

• “legal representative” means a person appointed under rule 39;

• “live link”, except in Part 15, has the meaning given by rule 18(3)(a);

• “the minimum number” means— in the case of proceedings to which rule 29 applies, five; in the case of any other proceedings, three;

• “the original sentence”, in relation to activation proceedings, has the same meaning as in Part 17;

• “pre-sentence report” has the meaning given by section 257;

• “the president of the board” means the lay member (if any) who by virtue of rule 34 is the president of the board;

• “proceedings with lay members” means any proceedings other than those listed in rule 27;

• “qualified to be the president of the board” has the meaning given by rule 34(3);

• “suspended sentence order” means an order under section 189(1) of the 2003 Act (suspended sentence of imprisonment) made by a relevant service court, as defined by section 196(2) of the 2006 Act;

• “unit” means— a naval ship or establishment; any body of members of Her Majesty’s forces formed under the command of a person appointed to be the commanding officer of the body; or an air force station.

• (3) Any reference in these Rules to Schedule 8 to the 2003 Act is to that Schedule as modified by Schedule 5 to the 2006 Act.

PART 2 — SERVICE OF DOCUMENTS

Interpretation of Part 2

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• (1) References in this Part to service under these Rules include service under any enactment applied by these Rules.

• (2) References in this Part to a requirement that a document be served on a person include any requirement that the document be supplied to the person, however expressed.

• (3) References in this Part to a person’s agreement to the service of a document in a particular way include his agreement that any document of a description specified by him may be served in that way.

Service on a person to whom proceedings relate

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• (1) Where under these Rules any document is to be served on a person to whom any proceedings relate, it may be served—

• (a) on him personally;

• (b) if he is subject to service law, by post in a letter addressed to him at his unit;

• (c) if he is not subject to service law—

• (i) by leaving it at his usual or last known place of abode; or

• (ii) by post in a letter addressed to his usual or last known place of abode;

• (d) by post in a letter addressed to his legal representative’s place of business; or

• (e) by DX, fax, electronic mail or other electronic means to his legal representative, where his legal representative—

• (i) has given a DX box number, fax number or electronic mail or other electronic means address; and

• (ii) has not refused to accept service by that means.

• (2) In this rule references to the person’s legal representative are to any person of whose name and address the court administration officer has been notified under rule 39(4).

Service on the court administration officer

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Where under these Rules any document is to be served on the court administration officer, it may be served—

• (a) by post, DX, fax, electronic mail or other electronic means to any office of the Military Court Service; or

• (b) on a member of that Service personally, with his agreement.

Service on the Director

7

Where under these Rules any document is to be served on the Director, it may be served—

• (a) by post, DX, fax, electronic mail or other electronic means to—

• (i) the principal office of the Service Prosecuting Authority; or

• (ii) with the agreement of a prosecuting officer, that Authority’s main office in Germany; or

• (b) on a prosecuting officer personally, with his agreement.

Service on other individuals

8

Where under these Rules any document is to be served on an individual other than a person to whom proceedings relate, the court administration officer or the Director, it may be served—

• (a) on the individual personally;

• (b) if he is subject to service law, by post in a letter addressed to him at his unit;

• (c) if he is not subject to service law—

• (i) by leaving it at his usual or last known place of abode; or

• (ii) by post in a letter addressed to his usual or last known place of abode.

Service on a corporation

9

Where under these Rules any document is to be served on a corporation within the meaning of the Companies Act 2006[^f00007], it may be served—

• (a) by post to—

• (i) the corporation’s principal office in the United Kingdom;

• (ii) if the corporation has no readily identifiable principal office in the United Kingdom, any place in the United Kingdom where it carries on its activities or business; or

• (iii) if the corporation has no principal office in the United Kingdom and does not carry on its activities or business in the United Kingdom, its principal office; or

• (b) by DX, fax, electronic mail or other electronic means, where the corporation—

• (i) has given a DX box number, fax number or electronic mail or other electronic means address; and

• (ii) has not refused to accept service by that means.

Service by another method

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• (1) A judge advocate may direct that a document may be served by a method other than those mentioned in rules 5 to 9.

• (2) A direction under this rule—

• (a) must specify—

• (i) the method to be used; and

• (ii) the date by which the document must be served; and

• (b) may specify the time on that date by which the document must be served.

• (3) The court may treat a document as served if the addressee responds to it, even if it was not served in accordance with these Rules.

Service by commanding officer

11

Where a document to be served on a person is sent or delivered to his commanding officer, his commanding officer must arrange for the document to be served on him personally as soon as is reasonably practicable.

Service by fax or electronic means

12

Where a document is served by fax, electronic mail or other electronic means, the person serving it need not provide a paper copy as well.

Date of service

13

Unless the contrary is shown, a document served on a person (otherwise than personally) shall be assumed to have been served—

• (a) in the case of a document sent by post from the United Kingdom to an address within the United Kingdom, on the fifth day after the day on which it was despatched;

• (b) in the case of a document sent by post—

• (i) from the United Kingdom or Germany to an address within Germany, or

• (ii) from Germany to an address within the United Kingdom,

on the tenth day after the day on which it was despatched;

• (c) in the case of any other document sent by post, on the tenth day after the day on which it was despatched;

• (d) in the case of a document served by DX, on the fifth day after the day on which it was left at the addressee’s DX box number or despatched;

• (e) in the case of a document served by fax, electronic mail or other electronic means, on the day after it was transmitted; and

• (f) in any case, on the day on which the addressee responds to it if that is earlier.

Proof of service

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• (1) Where—

• (a) under any of rules 5 to 9 or a direction under rule 10, a document may be served by a particular method, and

• (b) a certificate is produced which—

• (i) states that the document was so served, and

• (ii) is signed by a person who purports to have so served the document,

the document shall be assumed to have been so served, unless the contrary is shown.

• (2) Where a certificate is produced which—

• (a) states that a document was despatched, left at a DX box number or transmitted on a particular day, and

• (b) is signed by a person who purports to have despatched, left or transmitted the document,

for the purposes of rule 13 the document shall be assumed to have been despatched, left or transmitted on that day, unless the contrary is shown.

• (3) This rule is subject to any provision requiring proof on oath.

PART 3 — PROCEEDINGS: GENERAL

The court administration officer

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• (1) The court administration officer must exercise his functions (other than that of specifying the lay members for any proceedings) subject to any direction given by a judge advocate.

• (2) The court administration officer may delegate any of his functions to a member of the Military Court Service.

Listing of proceedings

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• (1) Proceedings shall commence at such time and place as may be appointed by the court administration officer; but this is subject to paragraph (2).

• (2) Where an offender has been convicted in trial or appellate proceedings, the sentencing proceedings in respect of him shall commence immediately after the conclusion of the trial or appellate proceedings, unless the judge advocate for those proceedings appoints some later time.

• (3) After the commencement of any proceedings, the court shall sit at such times and for such periods each day as the judge advocate may direct.

Notification of proceedings

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• (1) The court administration officer must serve notice of any time and place appointed by him for the commencement or resumption of any proceedings on—

• (a) each person to whom the proceedings relate;