The Standing Civilian Courts Order 1997

• Citation: S.I. 1997/172
• Sections: 112

Section 1 Citation and commencement

This Order may be cited as the Standing Civilian Courts Order 1997 and shall come into force on 1st April 1997.

Section 2 Interpretation

In this Order—

“the 1976 Act ” means the Armed Forces Act 1976;

“the 1955 Act ” means—

where the accused is being prosecuted under the Army Act 1955 , that Act,

where the accused is being prosecuted under the Air Force Act 1955 , that Act;

“commanding officer”, in relation to an accused, means the officer determined by or under regulations of the Defence Council under section 209(3)(f) of the 1955 Act for the purposes of investigation of offences;

“courts-martial rules” means—

where the accused is being prosecuted under the Army Act 1955, the Courts-Martial (Army) Rules 1997 ;

where the accused is being prosecuted under the Air Force Act 1955, the Courts-Martial (Royal Air Force) Rules 1997 ;

“magistrate” means the magistrate for any sitting or succession of sittings of a Standing Civilian Court specified by or on behalf of the Judge Advocate General;

“period of parental recognisance” means a period specified in an order made against the accused’s parent or guardian under paragraph 14(1) of Schedule 5A to the Army Act 1955, of Schedule 5A to the Air Force Act 1955 or of Schedule 4A to the Naval Discipline Act 1957 , in respect of an offence previously committed by that accused;

“the prosecution papers” has the meaning assigned to it in article 9(2);

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

“a service parent or guardian” shall be construed in accordance with paragraph 2(2) of Schedule 5A to the 1955 Act;

“special finding” shall be construed in accordance with article 70.

Section 3 Delegation of the court administration officer’s functions

The court administration officer may delegate any of his functions to persons appointed to act as court administration officers under his direction.

Section 4 Service

(1) Unless the context otherwise requires, where under this Order any document is to be served on any person, the document may be served—

(a) by sending the document to the commanding officer of that person;

(b) by personal delivery; or

(c) by post in a letter addressed to that person at his last known or usual place of work or abode.

(2) Where a document is received by the commanding officer in accordance with paragraph (1)(a) above, the commanding officer or a person on his behalf shall deliver it to the person on whom the document is to be served as soon as is practicable.

Section 5 Referring a case to the prosecuting authority

Where the higher authority refers a case in respect of an accused to the prosecuting authority, he shall forward to the prosecuting authority—

(a) a copy of any report concerning the case prepared by the service 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 1955 Act and details of any substitution or amendment of that charge under section 76(3) of the 1955 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) 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 6 Conduct of the prosecution

(1) If the prosecuting authority considers that Standing Civilian Court proceedings should be instituted, he shall—

(a) determine any charge to be preferred;

(b) prefer any charge so determined by him; and

(c) direct that any such charge is to be tried by a Standing Civilian Court.

(2) The prosecuting authority shall have the conduct of any Standing Civilian Court proceedings against the accused.

Section 7 Charge sheet

(1) A charge sheet shall state—

(a) the name and date of birth of the accused;

(b) particulars of how the accused is triable by a Standing Civilian Court; and

(c) any charge preferred against the accused.

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

Section 8 Charges and joinder

The rules contained in Schedule 1 to this Order shall be observed in proceedings before Standing Civilian Courts.

Section 9 Notifying the court administration officer

(1) Where the prosecutor has preferred a charge against an accused to be tried by a Standing Civilian Court, the prosecutor shall send to the court administration officer the prosecution papers.

(2) In this Order, “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; and

(e) a list of all unused material.

Section 10 Summoning the accused

On receipt of the prosecution papers, the court administration officer shall—

(a) after consultation with the magistrate, or the Judge Advocate General (or his deputy), appoint the date, time and place for the trial;

(b) specify any members of the court or assessors for the trial, if any members or assessors have not previously been specified for a succession of trials;

(c) serve on the accused—

(i) a summons to the accused in the form set out in Schedule 2 to this Order; and

(ii) the prosecution papers.

Section 11 Informing a parent or guardian of the accused

(1) This article applies where—

(a) an accused is under 17 years of age, or

(b) the offence with which the accused is charged is alleged to have been committed during a period of parental recognisance.

(2) The court administration officer shall serve on a parent or guardian of the accused who is a service parent or guardian—

(a) a summons to a parent or guardian in the form set out in Schedule 2 to this Order;

(b) a copy of the summons to the accused; and

(c) a copy of the prosecution papers.

(3) Where the prosecutor or the court administration officer is required under this Order to serve any document on the accused, he shall at the same time serve a copy of that document on the parent or guardian of the accused on whom a summons has been served under paragraph (2) above.

Section 12 Notifying the magistrate and commanding officer

The court administration officer shall send to the magistrate and the commanding officer of the accused—

(a) a copy of the charge sheet;

(b) a copy of the summons to the accused; and

(c) a copy of any summons to a parent or guardian.

Section 13 Changes to the charge sheet before trial

(1) Without prejudice to any other power of his in relation to the conduct of the proceedings, at any time before the opening of proceedings in respect of a charge, the prosecutor may—

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

(b) discontinue proceedings on that charge;

(c) prefer an additional charge against the accused and direct that the additional charge shall be tried at the same time as the original charge;

(d) determine that a charge originally preferred for trial by a Standing Civilian Court be tried by court-martial.

(2) If the prosecutor exercises any of his powers under paragraph (1) above, he shall serve notice in writing, together with any papers which are required to be added to the prosecution papers, on the accused and the court administration officer.

(3) If the prosecutor exercises his power under paragraph (1)(d) above, he shall proceed with the charge in accordance with courts-martial rules.

(4) Where the court administration officer receives notice in accordance with paragraph (2) above, he shall send a copy of the notice to the magistrate.

Section 14 Change in date, time or place of trial

(1) At any time before the opening of proceedings, the court administration officer may, after he has consulted the magistrate, or the Judge Advocate General (or his deputy), vary the date, time or place appointed for the trial.

(2) The court administration officer shall serve notice in writing of any change made under paragraph (1) above on the accused, the prosecutor and the magistrate.

Section 15 Objection before trial to member or assessor

(1) An accused to whom a summons has been sent shall be entitled to object before the trial to any member of the court or assessor specified for his trial.

(2) An objection under this article shall be made to the court administration officer in writing, stating the grounds for objection, not later than 48 hours before the date appointed for his trial.

(3) The court administration officer shall immediately on receipt of any such objection consider it and notify the accused of his decision in respect of the objection.

Section 16 Election of trial by court-martial

(1) An accused to whom a summons has been sent may in accordance with this article elect court-martial trial—

(a) at any time before the date appointed for his trial, by notifying the court administration officer in writing; or

(b) at trial in accordance with article 37 below.

(2) Where a charge sheet contains two or more charges against an accused, he may elect only in respect of both or all such charges.

(3) Where there is more than one charge sheet relating to an accused, he may elect in respect of any one or more of them.

Section 17 Election where more than one accused

Where two or more accused are charged in the same charge sheet and one of the accused elects court-martial trial in respect of that charge sheet, each accused shall be treated for the purposes of this Order as if he had so elected.

Section 18 Steps to be taken where accused elects

(1) Where an election is made under article 16(1)(a) above, the court administration officer shall notify the magistrate and the prosecutor.

(2) Where an election is made under article 16(1)(a) above, and is an election to which article 17 above applies, the court administration officer shall give notice in writing to any accused who as a result of the election is to be treated as if he had elected court-martial trial.

(3) Where an accused elects court-martial trial and his election is not subsequently withdrawn, the prosecutor shall proceed in accordance with courts-martial rules.

Section 19 Withdrawal of election

(1) An accused who elects court-martial trial may not withdraw his election except within 28 days of its being made and in accordance with this article.

(2) Where an accused seeks to withdraw his election, he shall—

(a) make an application in writing for leave to withdraw his election to the magistrate; and

(b) serve a copy of the application on the prosecutor.

(3) Before making his decision on the accused’s application, the magistrate shall afford the prosecutor the opportunity of making written representations to him.

(4) The magistrate shall, unless he considers that the accused should be afforded an opportunity to appear before him, issue his decision in writing.

(5) If an accused has elected court-martial trial and has with leave withdrawn his election, he may not make a further election for court-martial trial in respect of those proceedings.

Section 20 Conduct of the defence

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

(2) An appropriate person shall be appointed by the commanding officer 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.

Section 21 Representation of the accused

(1) The accused may appoint a legal adviser to act for him.

(2) Any right or responsibility which accrues to the accused by virtue of this Order may be exercised by his legal adviser on his behalf, except—

(a) electing to be tried by court-martial or stating that he does not wish so to elect, and

(b) pleading to the charge.

(3) 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.

(4) A legal adviser may represent an accused before a Standing Civilian Court 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 country outside the United Kingdom 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) Where an accused under 17 years of age is not represented by a legal adviser, the court may allow any parent or guardian of his who is present to represent him in such manner and to such extent as the court thinks fit.

Section 22 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 trial by Standing Civilian Court.

Section 23 Additional evidence before trial

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

Section 24 Witnesses not called by the prosecutor

(1) This article 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) a person in respect of whose evidence he has served notice under article 56.

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

(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 25 Witnesses for the accused

(1) As soon as is practicable after the accused has been summoned to appear before a Standing Civilian Court, the court administration officer shall notify the accused that any person whom he reasonably requires to give evidence at the trial may be summoned on his behalf by the court administration officer.

(2) If the accused requires 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 trial any witness requested by the accused, he shall inform the accused, the magistrate and the prosecutor in writing of his decision and the reason for it.

Section 26 Witness summons

(1) Where any person is required to give evidence before a Standing Civilian Court the court administration officer may summon the witness by issuing a witness summons in the form set out in Schedule 2 to this Order.

(2) Where any person is required to give evidence before a Standing Civilian Court the magistrate may, after the opening of proceedings, 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) for a witness who is subject to military law, air force law or the Naval Discipline Act 1957, through his commanding officer.

(4) Where any person is served with a summons in accordance with this article, 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 at a trial.

(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 to defray any other expenses payable under the regulations shall constitute tender in respect of those expenses.

Section 27 The magistrate

The magistrate shall conduct the proceedings in accordance with the law of England and Wales.

Section 28 Functions of assessors

An assessor may advise the magistrate on any matter (other than a question of law) arising at any stage during the proceedings, and shall for this purpose, and this purpose alone, remain with the magistrate when he deliberates on any matter, including sentence.

Section 29 Swearing in of magistrates, members and assessors on appointment

(1) A person appointed a magistrate under section 6(4) of the 1976 Act shall take an oath upon his appointment before the Lord Chancellor or a person authorised by him in that behalf.

(2) A person appointed a member of a panel under subsection (6) or (8) of section 6 of the 1976 Act shall take an oath upon his appointment before the magistrate or the Judge Advocate General.

Section 30 Form of oath

(1) An oath which is required to be administered under the 1955 Act or this Order shall be administered in the appropriate form and manner set out in Schedule 3 to this Order.

(2) Every oath which under this Order is to be administered in court shall be administered by the magistrate or by any person whom he authorises.

(3) The oath to be taken by a person over 14 but under 17 years of age, or by any person at a trial where no accused is over 17 years of age, shall be in the appropriate form set out in Schedule 3 to this Order.

(4) Where a person is permitted by section 102 of the 1955 Act, as applied in relation to Standing Civilian Courts by article 91 and Schedule 4 below, to make a solemn affirmation instead of swearing an oath, the affirmation shall be in the appropriate form set out in Schedule 3 to this Order.

Section 31 Bankers’ Books Evidence Act 1879

(1) The power to make an order conferred by section 7 of the Bankers’ Books Evidence Act 1879 may be exercised for the purposes of proceedings before Standing Civilian Courts by the magistrate.

(2) The order shall be in the form set out in Schedule 2 to this Order.

Section 32 Opening of proceedings

At the opening of proceedings, the name of the accused and the name of any person to whom a summons to a parent or guardian was sent under article 11 above shall be called out.

Section 33 Accused not appearing

(1) If the accused does not appear when his name is called out or within a reasonable time thereafter, the court shall adjourn and report to the court administration officer.

(2) Where the court administration officer receives such a report, he shall enquire into the matter and, after considering the court’s report and any representations of the prosecutor, decide whether the accused should be arrested with a view to his being brought before the court for his trial.

Section 34 Explaining function of members and assessors

Where it appears necessary to him, the magistrate shall explain to the accused and to any parent or guardian of the accused who is present the function in relation to the proceedings of any member of the court and assessor who is sitting.

Section 35 Arraignment of accused

Subject to articles 36 and 37 below, when the accused appears before the court he shall be arraigned.

Section 36 Ascertainment of accused’s age

Where it appears to the court that any accused was or may have been under 17 years of age at the date when the offence with which the accused is charged is alleged to have been committed, it shall before arraignment obtain evidence of his age, in order to satisfy itself that the court is properly constituted in accordance with section 6 of the 1976 Act.

Section 37 Opportunity to elect trial by court-martial

(1) Before the accused is arraigned on any charge sheet, the magistrate or any person whom he authorises shall say to the accused words to the effect of—

You have the right to elect to be tried by court-martial instead of by this court. Do you wish to elect court-martial trial?

(2) Subject to paragraphs (3) and (4) below, if any accused elects court-martial trial, the court shall adjourn and report the election in writing to the court administration officer.

(3) If there is another charge-sheet against the accused before the court, the court shall, before adjourning under this paragraph, proceed with the other charge-sheet.

(4) Where two or more accused are jointly charged and one or more but not all of the accused elect court-martial trial, the court shall, before adjourning or complying with paragraph (3) above, explain to each accused who has not so elected the effect of article 17 above.

Section 38 Objections in court

(1) An accused, before pleading to a charge, may object to—

(a) the magistrate;

(b) any member of the court;

(c) any assessor;

(d) any interpreter.

(2) The accused may object to any interpreter appointed during the course of the trial.

(3) The magistrate shall consider any objection and if he upholds it the court shall—

(a) if the court is still properly constituted, proceed with the case; or

(b) if the court is not still properly constituted, adjourn and report to the court administration officer.

Section 39 Applications before pleading

(1) Before an accused is required to plead to a charge, the court 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) If the court allows any application such that there is no charge remaining to which the accused can be required to plead, the proceedings shall be concluded.

Section 40 Severance

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

(i) try only one or more charges;

(ii) try only one or more accused;

(iii) order that any charge or any accused be tried by a differently constituted court.

Section 41 Plea to the charge

(1) Where the trial proceeds, the accused shall be required to plead separately to each charge on which he is arraigned.

(2) Where the court is empowered to make a special finding in respect of an offence, the accused may plead guilty to the charge subject to the matters as would merit the special finding.

(3) Where 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 42 Guilty plea

(1) If an accused pleads guilty to a charge, the court may, if it appears necessary to the magistrate and before the court decides to accept the plea, explain to the accused—

(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, having regard to all the circumstances, it considers that it should not accept the plea.

(3) Where a plea of guilty is not accepted by the court, the court shall enter a plea of not guilty.

Section 43 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 article 49 below, the court may reinstate and arraign the accused on any alternative charge which was discontinued.

Section 44 Changes to the charge sheet during trial

(1) Without prejudice to any other power of his in relation to the conduct of the proceedings, at any time after the opening of proceedings in respect of a charge the prosecutor may, with the leave of the court—

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

(b) discontinue proceedings on that charge;

(c) prefer an additional charge against the accused.

(2) If in accordance with this article 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 of such intention on the accused before the application is made.

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

(4) Where the court gives leave to discontinue proceedings on a charge, the court shall consider whether to give the direction provided for in section 83B(14) of the 1955 Act, as applied to Standing Civilian Courts by article 91 below and Schedule 4 to this Order.

Section 45 Changes to the charge sheet by the court

If after the opening of proceedings 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.

Section 46 Procedure after guilty plea

(1) This article applies where—

(a) the court has accepted only a plea or pleas of guilty; or

(b) the court has accepted a plea or pleas of guilty and the prosecutor does not proceed to the trial of any charge to which an accused has pleaded not guilty.

(2) This article applies whether the charge sheet is in respect of one or more than one accused.

(3) After the court records a finding of guilty, the prosecutor shall address the court on the facts of the case.

Section 47 Pleas of guilty and not guilty on one charge sheet

(1) This article applies where in respect of one charge sheet—

(a) the court has accepted a plea or pleas of guilty,

(b) a plea or pleas of not guilty have been entered, and

(c) the prosecutor proceeds to the trial of any charge on which a plea of not guilty has been entered.

(2) This article applies whether the charge sheet is in respect of one or more than one accused.

(3) Unless the magistrate directs otherwise, the trial of any charge on which a plea of not guilty has been entered shall proceed in accordance with this Order before the court considers any guilty plea.

(4) After the court has announced its finding on each charge in respect of which a plea of not guilty has been entered, the court shall consider any guilty plea.

(5) After the court records a finding of guilty in respect of each charge to which the accused has pleaded guilty, the prosecutor shall address the court on the facts of the case.

Section 48 Dispute on facts after finding of guilty

(1) Where after the court has recorded a finding of guilty in respect of any charge there are disputed facts in the case, any issue of fact may be tried.

(2) Where an issue of fact is being tried in accordance with this article—

(a) the court may direct the prosecutor to call any witness to give evidence, and

(b) the prosecutor and the accused may, with the leave of the court, adduce evidence.

Section 49 Change of plea

(1) At any time before the court deliberates on its finding on a charge, an accused who has pleaded not guilty to a charge may, with the leave of the court, withdraw his plea and substitute a plea of guilty.

(2) At any time before the court closes to deliberate on its sentence on a charge, an accused who has pleaded guilty to the charge may, with the leave of the court, withdraw his plea and substitute a plea of not guilty.

(3) Where an accused changes his plea, the court shall proceed so far as is necessary as if the initial plea to that charge were the plea substituted.

Section 50 Procedure after not guilty plea

Before calling the witnesses for the prosecution, the prosecutor may make an opening address.