The Courts-Martial (Royal Air Force) Rules 1997

• Citation: S.I. 1997/171
• Sections: 145

Section 1 Citation and commencement

These Rules may be cited as the Courts-Martial (Royal Air Force) Rules 1997 and shall come into force on 1st April 1997.

Section 2 Interpretation

In these Rules—

“ the Act ” means the Air Force Act 1955;

“commanding officer”, in relation to an accused, means such officer having powers of command over that person as may be determined by or under regulations of the Defence Council made under section 82(1) of the Act;

“commencement of the trial” shall be construed in accordance with rule 42;

“formal preliminary examination” shall be construed in accordance with rule 5;

“hearing for directions” shall be construed in accordance with rule 25;

“the judge advocate”—

in relation to a court-martial, means the judge advocate appointed by or on behalf of the Judge Advocate General to be a member of the court-martial;

in relation to preliminary proceedings, means the judge advocate appointed by or on behalf of the Judge Advocate General to conduct any preliminary proceedings;

“preliminary proceedings” includes a hearing for directions and a preparatory hearing but does not include a formal preliminary examination;

“preparatory hearing” shall be construed in accordance with rule 29;

“pre-trial hearing” shall be construed in accordance with rule 37;

“the prosecutor” means the prosecuting authority or any prosecuting officer appointed by the prosecuting authority;

“prosecution papers” has the meaning assigned to it in rule 9; and

“special finding” shall be construed in accordance with rule 71.

Section 3 Service on an accused

(1) Unless the context otherwise requires, where under these Rules any document or notice is to be served on an accused by the court administration officer or the prosecutor, it may be served by sending it to the commanding officer of the accused.

(2) Where a document or notice is received by the commanding officer in accordance with paragraph (1) above, the commanding officer or a person on his behalf shall serve it on the accused as soon as is practicable.

Section 4 Referring a case to the prosecuting authority

If the higher authority refers a case in respect of an accused to the prosecuting authority, in accordance with section 76A(I) of the Act he shall forward to the prosecuting authority—

(a) a copy of any report concerning the case prepared by the Royal Air Force Police or other investigator;

(b) any allegation reported to the commanding officer of the accused in the form of a charge under section 76(1) of the Act and details of any substitution or amendment of that charge under section 76(3) of the Act;

(c) a list of any potential witnesses;

(d) any written statements or written record of evidence of the potential witnesses;

(e) any statements made by the accused including records or transcripts of interviews conducted under caution;

(f) a list of any exhibits;

(g) a copy of any conduct sheets of the accused;

(h) any other information in the possession of the higher authority which may be material to the prosecutor’s consideration of the institution of proceedings.

Section 5 Formal preliminary examination

(1) Where a case in respect of an accused has been forwarded to the prosecuting authority but he has not preferred any charge, the prosecutor may order an examination under this rule and such an examination shall in these Rules be referred to as a formal preliminary examination.

(2) The order for a formal preliminary examination shall—

(a) appoint the date, time and place at which the formal preliminary examination shall take place;

(b) state the nature of the allegations against the accused;

(c) list the witnesses whom the prosecutor seeks to examine orally; and

(d) list the witnesses whose written statements or other record of evidence are to be read out.

(3) The order shall be served on the accused and the court administration officer not less than 24 hours before the time appointed for the formal preliminary examination.

(4) On receipt of the order, the court administration officer—

(a) shall summon to attend the formal preliminary examination—

(i) the witnesses listed in the order whom the prosecutor requires to examine orally; and

(ii) such additional witnesses as the accused may request;

(b) may arrange for the attendance at the formal preliminary examination of a court recorder and interpreter.

Section 6 Conduct of formal preliminary examination

(1) A formal preliminary examination shall be conducted by an officer of the legal branch of the regular air force (“the conducting officer”).

(2) Subject to paragraph (4) below, each witness whom the prosecutor seeks to examine orally shall be examined by the conducting officer, after which the accused shall be entitled to cross-examine the witness.

(3) A signed written statement or other record of the evidence of each witness listed under rule 5(2)(d) above shall be read out by the conducting officer, unless the accused consents to their inclusion in the record of the examination without being read out.

(4) If—

(a) the case being investigated concerns behaviour of a violent, cruel or sexual nature; and

(b) the relevant witness is a person under the age of 17,

then—

(i) the conducting officer may read out any written statement made by or taken from the witness which would be admissible if given orally; and

(ii) the accused may not cross-examine the witness in person.

(5) During the formal preliminary examination the conducting officer may summon any witness to attend the examination and give oral evidence.

(6) After paragraphs (2) and (3) above have been complied with, the conducting officer shall explain to the accused—

(a) that he may give evidence if he so wishes but he is not obliged to do so;

(b) the consequences of choosing to remain silent; and

(c) that he may call witnesses on his behalf.

(7) Any witness for the accused (including the accused himself) may give evidence orally but shall not be subject to cross-examination, except that the conducting officer may ask a question where it is necessary to resolve an ambiguity or to enable the evidence to be recorded in a coherent form.

(8) Except where the witness is a person under the age of 14, any evidence given orally during the formal preliminary examination shall be given on oath, administered by the conducting officer.

(9) Any evidence given orally during the formal preliminary examination shall be recorded by the conducting officer or a court recorder.

(10) Where the evidence is recorded in writing, the record of his evidence shall be read back to the witness at the conclusion of his evidence, corrected where necessary and signed by him.

(11) A copy of any statement read out in accordance with paragraph (3) or (4) above and the transcript of any shorthand note or mechanical record shall be included in the record of the examination.

(12) After the conclusion of the formal preliminary examination, the conducting officer shall deliver the record of the examination to the prosecuting authority.

Section 7 Charge sheet

(1) A charge sheet shall state—

(a) the name, service number and rank of the accused;

(b) the name of the unit, if any, in which the accused is serving;

(c) particulars of how the accused is subject to air force law or otherwise triable under the Act;

(d) any charge preferred against the accused; and

(e) whether any charge preferred against the accused is to be tried by general court-martial or district court-martial.

(2) A charge sheet shall be signed and dated by the prosecutor.

Section 8 Charges and joinder

The rules contained in Schedule 1 to these Rules shall be observed in proceedings before courts-martial.

Section 9 Notifying the accused’s commanding officer

(1) Where the prosecutor has preferred a charge against an accused to be tried by court-martial, the prosecutor shall notify the commanding officer of the accused of the charge by sending to the commanding officer the prosecution papers.

(2) In these Rules, “the prosecution papers” means—

(a) a copy of the charge sheet;

(b) a list of any witnesses whom the prosecutor proposes to call;

(c) copies of any statements of the prosecution witnesses, or other record of their evidence;

(d) a list of any exhibits which the prosecutor proposes to put in evidence and copies of those exhibits or details of their whereabouts;

(e) a copy of any conduct sheets of the accused; and

(f) a list of all unused material.

Section 10 Notifying the court administration officer

(1) The prosecutor shall notify the court administration officer of any charge which he has preferred by sending him a copy of the prosecution papers.

(2) On receipt of a copy of the prosecution papers from the prosecutor, the court administration officer shall send a copy of the prosecution papers to the Judge Advocate General (or his deputy).

Section 11 Notification of trial

(1) This rule applies where the commanding officer has been notified in respect of an accused under his command that the prosecutor has preferred a charge.

(2) As soon as is practicable after receipt of the prosecution papers, the commanding officer shall notify the accused that he is to be tried by court-martial.

(3) On notifying the accused in accordance with paragraph (2) above, the commanding officer shall serve the accused with—

(a) the prosecution papers;

(b) where so required by the prosecutor, a statement explaining the effect of section 11 of the Criminal Justice Act 1967 (notice of alibi) and a form for the accused’s notice of alibi;

(c) a form for notifying the court administration officer of the accused’s legal adviser; and

(d) a form for acknowledgement of receipt.

Section 12 Discontinuing proceedings before trial

If before the commencement of the trial of a charge the prosecutor discontinues proceedings on that charge, he shall serve notice in writing on the accused and the court administration officer.

Section 13 Description of the court-martial

If before the commencement of the trial of a charge the prosecutor determines that any charge should be tried by a court-martial of a different description from that contained in the initial charge sheet, he shall serve notice in writing on the accused and the court administration officer.

Section 14 Amending charges and additional charges before trial

(1) If before the commencement of the trial of a charge the prosecutor—

(a) amends, or substitutes another charge or charges for, that charge;

(b) prefers an additional charge against the accused and directs that the additional charge shall be tried at the same court-martial trial as the original charge,

he shall serve notice on the accused and the court administration officer.

(2) Except with the consent of the accused, notice under paragraph (1) above shall not be served less than 24 hours before the time appointed for the trial of the original charge.

(3) Where the prosecutor is required to serve notice on the accused in accordance with this rule, he shall do so by sending to the commanding officer of the accused or, with the consent of the accused, by serving directly on the accused—

(a) a copy of the amended charge sheet;

(b) any papers which are required to be added to the prosecution papers as a result of amending the charge sheet; and

(c) where in the opinion of the prosecutor it is necessary, a statement explaining the effect of section 11 of the Criminal Justice Act 1967 and a form for the accused’s notice of alibi.

(4) Where any document is received by the commanding officer in accordance with paragraph (3) above, he shall serve it on the accused as soon as is practicable.

(5) Where the prosecutor is required to serve notice on the court administration officer in accordance with this rule, he shall do so by sending to the court administration officer or, if less than 24 hours before the time appointed for the trial of the original charge, the judge advocate—

(a) a copy of the amended charge sheet; and

(b) any papers which are required to be added to the prosecution papers as a result of amending the charge sheet.

Section 15 Conduct of the defence

(1) An accused who has been notified that he is to be tried by court-martial shall be afforded a proper opportunity for preparing his defence.

(2) A defending officer shall be appointed by the commanding officer of the accused to assist the accused to prepare and conduct his defence, unless the accused states in writing that he does not wish such an appointment to be made.

(3) The accused may appoint a legal adviser to act for him and any right or responsibility which accrues to the accused by virtue of these Rules (except pleading to a charge) may be exercised by the accused’s legal adviser on his behalf.

(4) The accused shall inform the court administration officer of the name and address of his legal adviser as soon as is practicable after a legal adviser has been appointed.

(5) A legal adviser may represent an accused at a formal preliminary examination, at any preliminary proceedings and before a court-martial if he is—

(a) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 ;

(b) an advocate or a solicitor in Scotland;

(c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland; or

(d) a person who has in any Commonwealth country 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.

Section 16 Convening the court

(1) On receipt of a copy of the prosecution papers, the court administration officer shall order a court-martial to convene to try the accused.

(2) Not less than 24 hours before the time appointed for the trial, a copy of the convening order shall be served on—

(a) the accused; and

(b) the officer members of the court, the Judge Advocate General (or his deputy) and the prosecuting authority.

(3) If the court administration officer amends or withdraws the order convening the court-martial, he shall serve a copy of the amended order or serve notice in writing as appropriate on—

(a) the accused; and

(b) the officer members of the court, the Judge Advocate General (or his deputy) and the prosecuting authority.

(4) The court administration officer may not withdraw the order convening a court-martial after the time appointed for the trial.

Section 17 Ineligibility for membership of courts-martial

An officer shall not be eligible to be a member of a court-martial for the trial of an accused if—

(a) he serves under the command of—

(i) the higher authority who referred the case against the accused to the prosecuting authority;

(ii) the prosecuting authority; or

(iii) the court administration officer;

(b) he—

(i) has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;

(ii) is an advocate or a solicitor in Scotland;

(iii) is a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland;

(iv) has in any Commonwealth country 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.

Section 18 Appointment of court officials

The court administration officer may appoint at any time a person or persons to act as—

(a) court recorder;

(b) interpreter,

at a court-martial or at any preliminary proceedings.

Section 19 Delegation of the court administration officer’s functions

The court administration officer appointed by the Defence Council in accordance with section 84A of the Act may delegate any of his functions to persons appointed to act as court administration officers under his direction.

Section 20 Additional evidence before trial

If before the commencement of the trial the prosecutor wishes to adduce at trial any evidence additional to that contained in the prosecution papers, he shall serve a copy of the additional evidence (or details of its whereabouts) on the accused and the court administration officer.

Section 21 Witness not called by the prosecutor

(1) This rule applies where the prosecutor does not intend to call as a witness—

(a) any person whose statement or record of evidence has been served on the accused as part of the evidence for the prosecution; or

(b) any person in respect of whose evidence he has served notice under rule 56 below.

(2) Where this rule applies, unless the accused waives the requirement, the prosecutor shall—

(a) serve notice in writing on the accused that he does not intend to call that person; or

(b) tender that person at trial for cross-examination by the accused.

Section 22 Witnesses for the accused

(1) As soon as is practicable after the accused has been notified that he is to be tried by court-martial, the court administration officer shall notify the accused that any person whom he reasonably requires to give evidence at preliminary proceedings or the court-martial may be summoned on his behalf by the court administration officer.

(2) If the accused requests the court administration officer to summon a witness, the accused shall provide to the court administration officer sufficient information in sufficient time to enable a summons to be served.

(3) If in the opinion of the court administration officer it is not reasonable to summon to preliminary proceedings or a court-martial any witness requested by the accused, he shall inform the accused, the Judge Advocate General (or his deputy) and the prosecutor in writing of his decision and the reason for it.

Section 23 Witness summons

(1) Where any person is required to give evidence at—

(a) a formal preliminary examination;

(b) any preliminary proceedings;

(c) a court-martial;

the court administration officer may summon the witness by issuing a witness summons in the form set out in Schedule 2 to these Rules.

(2) Where any person is required to give evidence at a court-martial, the judge advocate may, after the commencement of the trial, issue a witness summons.

(3) A witness summons shall be served on the witness—

(a) by delivering it to him personally;

(b) by leaving it for him with a person at the witness’s usual place of abode;

(c) by post in a letter addressed to him at his last known or usual place of abode; or

(d) where the witness is subject to air force law, military law or the Naval Discipline Act 1957 , through his commanding officer.

(4) Where any person is served with a witness summons in accordance with this rule, there shall be paid or tendered to him at that time any expenses which by regulations made by the Defence Council are payable to a witness in respect of his attendance.

(5) For the purposes of paragraph (4) above—

(a) the tender of a warrant or voucher entitling the person to travel free of charge shall constitute tender of his expenses in respect of any travelling required; and

(b) the tender of a written undertaking by the court administration officer or the president of the court-martial to defray any other expenses payable under the regulations shall constitute tender in respect of those expenses.

Section 24 Oaths and affirmations

Any oath or affirmation shall be administered in the form and manner set out in Schedule 3 to these Rules.

Section 25 Hearing for directions

(1) The judge advocate may direct the court administration officer to convene a hearing for the purpose of giving directions—

(a) of his own motion; or

(b) on the application of the prosecutor or accused for such a hearing;

and such a hearing shall be referred to in these Rules as a hearing for directions.

(2) An application for a hearing for directions shall—

(a) be made to the Judge Advocate General (or his deputy) in the form set out in Schedule 2 to these Rules; and

(b) specify the reason for which it is made.

(3) Subject to rule 28 below, the applicant shall serve notice of the application in writing on every other party to the proceedings and the court administration officer.

(4) Before directing the court administration officer to convene a hearing for directions, the judge advocate shall afford each party to the proceedings the opportunity of making written representations to him.

(5) Paragraph (4) above shall not oblige the judge advocate to afford any party the opportunity of making representations where it appears to him that it would be impracticable to do so, or would cause unnecessary delay, or where the application is made in accordance with rule 28 below.

(6) On receipt of a direction from the judge advocate under paragraph (1) above, the court administration officer shall—

(a) appoint the date, time and place at which the hearing for directions will take place;

(b) issue a notice in writing of the date, time and place appointed;

(c) list in the notice such of the matters contained in Schedule 4 to these Rules to be addressed at the hearing as the judge advocate may request;

(d) subject to rule 28 below, serve the notice on the parties to the proceedings; and

(e) arrange for the attendance at the hearing of a court recorder and, if the judge advocate or any party so requests, an interpreter.

(7) If in advance of the hearing the judge advocate so directs, the prosecutor shall—

(a) prepare an outline of the prosecution case; and

(b) serve a copy of that outline on the accused and the judge advocate.

Section 26 Hearing for directions in chambers

(1) A hearing for directions shall take place before the judge advocate in chambers.

(2) Except with the leave of the judge advocate and subject to rule 28 below, the only persons entilted to be present at a hearing for directions are the court administration officer, the prosecutor, the accused, the accused’s legal adviser, the court recorder and any interpreter.

Section 27 Substance of a hearing for directions

(1) The parties to the proceedings shall address the judge advocate at the hearing for directions on such of the matters contained in Schedule 4 to these Rules as are indicated in the notice convening the hearing.

(2) Paragraph (1) above is without prejudice to the right of the judge advocate or any party to the proceedings to raise at the hearing for directions any other matter.

(3) The judge advocate may at a hearing for directions make such directions as appear to him to be necessary to secure the proper and efficient trial of the case.

(4) Subject to rule 28 below, the court administration officer shall serve a copy of the record of the hearing for directions on the judge advocate, the prosecutor and the accused before the court-martial.

Section 28 Hearing for directions without notice to the accused

(1) Where in the public interest it is desirable to seek a direction from the judge advocate without giving notice to the accused, the prosecutor may apply for a hearing for directions in accordance with this rule.

(2) Where the prosecutor applies for a hearing for directions under this rule, the judge advocate shall determine whether in the interests of justice such a hearing is necessary.

(3) Where the judge advocate grants the prosecutor’s application under this rule, he shall direct that the hearing for directions shall proceed without notice to the accused and without the participation of the accused.

Section 29 Preparatory hearing

(1) The judge advocate may direct the court administration officer to convene a hearing for the purpose of giving orders and rulings in preparation for a court-martial—

(a) of his own motion; or

(b) on the application of the prosecutor or accused for such a hearing;

and such hearing shall be referred to in these Rules as a preparatory hearing.

(2) An application for a preparatory hearing shall—

(a) be made to the judge advocate in the form set out in Schedule 2 to these Rules; and

(b) specify the reason for which it is made.

(3) The applicant shall serve notice in writing of the application with a time estimate of the length of the preparatory hearing on every other party to the proceedings and the court administration officer.

(4) Before directing the court administration officer to convene a preparatory hearing, the judge advocate shall afford each party to the proceedings the opportunity of making written representations to him.

(5) Paragraph (4) above shall not oblige the judge advocate to afford any party the opportunity of making representations where it appears to him that it would be impracticable to do so, or would cause unnecessary delay.

(6) On receipt of a direction from the judge advocate under paragraph (1) above, the court administration officer shall—

(a) appoint the date, time and place at which the preparatory hearing will take place;

(b) issue a notice in writing of the date, time and place appointed;

(c) serve the notice on the parties to the proceedings; and

(d) arrange for the attendance at the hearing of a court recorder and, if the judge advocate or any party so requests, an interpreter.

Section 30 Challenges and oaths at a preparatory hearing

(1) At the commencement of the preparatory hearing the accused shall be entitled to object to the judge advocate and any interpreter.

(2) At the commencement of the preparatory hearing the judge advocate shall administer an oath to any interpreter.

Section 31 Substance of a preparatory hearing

(1) At a preparatory hearing the judge advocate may make an order or ruling on—

(a) any question as to the admissibility of evidence;

(b) any other question of law, practice or procedure relating to the case.

(2) An order or ruling made under this rule shall have effect until the conclusion of the court-martial trial unless it appears to the judge advocate on application made to him at any stage during the proceedings that in the interests of justice it should be varied or discharged.

Section 32 The judge advocate

(1) The judge advocate shall conduct the court-martial in accordance with the law of England and Wales.

(2) The judge advocate shall ensure that a proper record of the proceedings is made, in sufficient detail to enable the reviewing authority to follow the course of the proceedings.

Section 33 The president

(1) Subject to rule 32 above, the president shall be responsible for ensuring that the trial befits the traditions and standards of the Royal Air Force.

(2) It shall be the duty of the president to ensure that any person present during the proceedings for instruction takes no part in the proceedings and expresses no opinion to the court, on any matter relating to the trial, before the conclusion of the trial.

Section 34 Sittings and adjournment

(1) If it appears to the judge advocate necessary in the interests of justice, a court-martial may adjourn from time to time.

(2) A court-martial shall not sit on Saturday, Sunday, Christmas Day or Good Friday unless in the opinion of the court it is necessary to do so.

(3) A court-martial shall sit at such times and for such periods each day as seem to the court to be reasonable in the circumstances.

Section 35 Record of proceedings

(1) The record of proceedings of a court-martial shall include—

(a) the record of findings; and

(b) the record of sentence, if any.

(2) A certified transcript or note of evidence given at the court-martial and any preliminary proceedings shall be kept with the record of proceedings.

(3) Any transcript of a shorthand note shall be signed by the shorthand writer.

(4) Any transcript of a mechanical record shall be signed by the person who transcribed it.

(5) At the conclusion of the trial, the record of proceedings shall be signed by the judge advocate and the president.

Section 36 Closed court

Where a court-martial sits in closed court, any person under instruction is permitted to be present.

Section 37 Pre-trial hearing

(1) The judge advocate may direct the court administration officer to order a hearing to take place at the court-martial before the commencement of the trial of an accused—

(a) of his own motion; or

(b) on the application of the prosecutor or accused for such a hearing;

and such a hearing shall be referred to in these Rules as a pre-trial hearing.

(2) An application for a pre-trial hearing shall—

(a) be made to the judge advocate in the form set out in Schedule 2 to these Rules; and

(b) specify the reason for which it is made.

(3) An applicant shall serve notice in writing of the application with a time estimate of the length of the pre-trial hearing on every other party to the proceedings and the court administration officer.

(4) Before directing the court administration officer to order a pre-trial hearing, the judge advocate shall afford each party to the proceedings the opportunity of making written representations to him.

(5) Paragraph (4) above shall not oblige the judge advocate to afford any party the opportunity of making representations where it appears to him that it would be impracticable to do so, or would cause unnecessary delay.

(6) On receipt of a direction from the judge advocate under paragraph (1) above, the court administration officer shall—

(a) issue an order convening the court-martial; or

(b) if the order convening the court-martial has already been issued, amend the order;

so that the order shall specify—

(i) the date and time at which the pre-trial hearing before the judge advocate shall take place; and

(ii) the date and time at which the officer members of the court shall convene for the trial.

(7) Nothing in this rule shall prevent the judge advocate from ordering a pre-trial hearing after the full court has assembled.

Section 38 Challenges and oaths at a pre-trial hearing

(1) Where a pre-trial hearing takes place, rules 40 and 41 below shall be complied with at the beginning of the pre-trial hearing, except that—

(a) the accused may not state his objection to any member of the court other than the judge advocate; and

(b) the judge advocate shall not administer an oath or affirmation to any officer member of the court,

until after the full court has convened.

(2) When paragraph (1) above applies, the application of rules 40 and 41 below in respect of court members not present at the pre-trial hearing shall be modified accordingly.

Section 39 Substance of a pre-trial hearing

(1) At a pre-trial hearing the judge advocate may make an order or ruling on—

(a) any question as to the admissibility of evidence;

(b) any other question of law, practice or procedure relating to the case.

(2) An order or ruling made under this rule shall have effect until the conclusion of the court-martial trial unless it appears to the judge advocate on application made to him at any stage during the proceedings that in the interests of justice it should be varied or discharged.

(3) If the judge advocate allows any application such that there is no charge remaining to which the accused can be required to plead, he shall direct the court administration officer to dissolve the court.

Section 40 Challenges by the accused

(1) This rule applies subject to rule 38 above.

(2) When the full court has assembled, the order convening the court-martial (including the name of any officer specified therein) and the names of the judge advocate and any interpreter shall be read to the accused.

(3) The accused may object to any person whose name is read out and to any interpreter appointed after the commencement of the trial.

(4) If more than one person is objected to, the objection to each shall be considered in the following order—

(a) the judge advocate;

(b) the president;

(c) the other members of the court;

(d) any waiting member; and

(e) any interpreter.

(5) The determination of the judge advocate on any objection shall be announced in open court.

(6) If an objection to an officer member other than the president is allowed, any waiting member in respect of whom no objection has been made or allowed shall take his place.

(7) Where a court-martial is convened to try two or more accused separately and one accused objects to the president or to any other member of the court, the judge advocate may, if he thinks fit, adjourn the trial of that accused and proceed with the trial of the other accused only.

Section 41 Administration of oaths and affirmations

(1) This rule applies subject to rule 38 above.

(2) After the accused has been given the opportunity to challenge the members of the court, oaths or affirmations shall be administered in the presence of the accused.

(3) The judge advocate, or any other member of the court on his behalf, shall administer an oath or affirmation to—

(a) the president;

(b) each officer member of the court;

(c) any person in attendance for instruction;

(d) any interpreter;

(e) any witness.

Section 42 Commencement of the trial

(1) For the purposes of the Act and these Rules the trial of an accused commences immediately after the last court member has been sworn.

(2) If after the commencement of the trial the judge advocate allows any challenge, objection, plea or application such that there is no charge remaining to which the accused can be required to plead, he shall dissolve the court.

Section 43 Judge advocate sitting alone

(1) Where—

(a) the accused makes a submission of no case to answer; or

(b) for any reason the judge advocate is of the opinion that he should rule on a question in the absence of the other members of the court,

the judge advocate may direct the other members of the court to withdraw.

(2) If, while the judge advocate is sitting alone in accordance with these Rules, a person commits an offence under section 57 or 101 of the Act, the judge advocate may report the occurrence to—

(a) the president; or

(b) if the offence is committed during preliminary proceedings and the person is subject to air force law, the commanding officer of that person.

Section 44 Severance

(1) Where—

(a) an accused is charged with more than one offence; or

(b) two or more accused are charged in the same charge sheet;

and the judge advocate rules that the fair trial of an accused may be prejudiced if the charges are not severed or that for any other reason it is desirable that the charges are severed, he may—

(i) order the court to try only one or more charges;

(ii) order the court to try only one or more accused;

(iii) leave any charge or any accused to be tried by a new court.

(2) Where an accused is charged in more than one charge sheet and the judge advocate rules that for any reason it is desirable that the court tries only the charge or charges set out in one charge sheet, he may leave the charge or charges set out in any other charge sheet to be tried by a new court.

Section 45 Arraignment

(1) The accused shall be arraigned by the judge advocate after the commencement of the trial.

(2) The accused need not be arraigned on all the charges in the charge sheet at the same time.

(3) Before the accused is arraigned on any charge, the judge advocate shall pass to each member of the court a copy of the charge sheet which shall set out only the charge or charges on which the accused is to be arraigned and any charge which is stated to be an alternative to a charge on which the accused is to be arraigned.

(4) The accused shall be required to plead separately to each charge on which he is arraigned.

Section 46 Guilty plea

(1) If the accused pleads guilty to a charge, the judge advocate shall, if it appears necessary to him and before the court accepts the plea, satisfy himself that the accused understands—

(a) the nature of the charge;

(b) the general effect of the plea; and

(c) the difference in procedure following pleas of guilty and not guilty.

(2) The court shall not accept a plea of guilty if—

(a) the judge advocate, having regard to all the circumstances, considers that the court should not accept the plea; or

(b) the accused is liable, if convicted, to a sentence of death.

(3) Where—

(a) a plea of guilty is not accepted by the court; or

(b) the accused does not plead to the charge or does not plead to it intelligibly,

the court shall enter a plea of not guilty.

Section 47 Alternative charges

(1) Where an accused pleads guilty to the first of two or more alternative charges, the court, if it accepts the plea, shall record a finding of guilty in respect of that charge and shall give the prosecutor leave to discontinue proceedings in respect of any alternative charge or charges.

(2) Where an accused pleads guilty to any other of two or more alternative charges, the court shall—

(a) if the prosecutor gives his consent—

(i) record a finding of guilty on any charge to which the accused has pleaded guilty,

(ii) record a finding of not guilty on any alternative charge placed before it on the charge sheet, and

(iii) give the prosecutor leave to discontinue proceedings in respect of any further alternative charge or charges; or

(b) if the prosecutor does not give the consent referred to in sub-paragraph (a) above, proceed as if the accused had pleaded not guilty to all the charges.

(3) If the court records a finding of guilty under paragraph (1) or (2)(a) above and subsequently allows the accused to change his plea under rule 54 below, the court may reinstate and arraign the accused on any alternative charge which was discontinued.

Section 48 Additional charges during trial

(1) If after the commencement of the trial the prosecutor intends to seek the leave of the court to prefer an additional charge, he shall, unless the accused waives the requirement, serve notice in writing of such intention on the accused before the application is made.

(2) Where notice is served on the accused in accordance with paragraph (1) above, he may apply for an adjournment of the trial.

Section 49 Changes to the charge sheet during trial

(1) If after the commencement of the trial the prosecutor intends to—

(a) amend, or substitute another charge or charges for, a charge;

(b) discontinue proceedings on a charge;

(c) prefer an additional charge;

the prosecutor shall seek the leave of the court.

(2) Where the court gives leave to discontinue proceedings on a charge, it shall consider whether to give the direction provided for in section 83B(14) of the Act.

Section 50 Changes to the charge sheet by the court

If after the commencement of the trial it appears that, with due regard to the fairness to the accused, it is desirable in the interests of justice to amend a charge, the court may do so.