The Courts-Martial (Royal Navy) Rules 2007

• Citation: S.I. 2007/3443
• Sections: 139

Section 1 Citation and commencement

These Rules may be cited as the Courts-Martial (Royal Navy) Rules 2007 and shall come into force on 1st January 2008.

Section 2 Interpretation

(1) In these Rules—

“the Act” means the Naval Discipline Act 1957;

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

“ the board ” means those members of the court-martial other than the judge advocate;

“ commanding officer ”, in relation to an accused, means the officer who is for the time being in command of the ship, unit or establishment to which the accused belongs;

“ commencement of the trial ” shall be construed in accordance with rule 57;

“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 a preliminary hearing, means the judge advocate appointed by or on behalf of the Judge Advocate General to conduct any such proceedings;

“ legal representative ” means a person appointed to represent an accused at any proceedings before a court-martial, providing he is—

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

an advocate or a solicitor in Scotland;

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

a person having in any of the Channel Islands, the Isle of Man, a Commonwealth country or British overseas territory rights and duties similar to those of a barrister or solicitor in England and Wales, and subject to punishment or disability for breach of professional rules;

“ live television link ” means an arrangement by which a person (when not in the place where the hearing is being held) is able to see and hear, and to be seen and heard by, the court during a hearing (and for this purpose any impairment of eyesight or hearing is to be disregarded);

“ preliminary charge ” means the charge which would have been dealt with summarily had the accused not elected court-martial trial;

“ preliminary hearing ” shall be construed in accordance with rule 33;

“ the president of the board ” shall be construed in accordance with rule 52;

“ the prosecuting authority ” means the prosecuting authority or any prosecuting officer or other person appearing on his behalf;

“ prosecution papers ” shall be construed in accordance with rule 9; and

“ special finding ” shall be construed in accordance with rule 74.

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 prosecuting authority, it may be served—

(a) by sending it to the commanding officer of the accused;

(b) by delivering it to the accused personally;

(c) by leaving it for the accused with a person at the accused’s usual place of abode; or

(d) by post in a letter addressed to the accused at his last known or usual place of abode.

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

Section 4 Referring a case to the prosecuting authority

(1) If the higher authority refers a case in respect of an accused to the prosecuting authority in accordance with section 52C(1) of the Act, he shall forward to the prosecuting authority—

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

(b) the offence or a list of offences alleged against the accused;

(c) a list of any potential witnesses;

(d) any written statements 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 evidence, real or documentary; and

(h) where the accused has elected trial by court-martial, notification of that fact.

Section 5 Withdrawal of election in a multiple charge case

(1) Where—

(a) an election for court-martial trial relates to two or more preliminary charges; and

(b) that election is withdrawn with the leave of the prosecuting authority,

section 52I(2) of the Act shall have effect as if it required the prosecuting authority to refer back to the commanding officer of the accused each of the preliminary charges to be tried summarily.

Section 6 Referring back in a multiple charge case before charges are preferred

(1) Where—

(a) an election for court-martial trial relates to two or more preliminary charges; and

(b) the prosecuting authority considers that a charge or charges different from or additional to a preliminary charge should be preferred,

section 52II(1) of the Act shall have effect as if it required the prosecuting authority to refer back to the commanding officer of the accused any additional preliminary charge as well as the charge or charges which he would otherwise be required to refer back under that section.

(2) In paragraph (1), the reference to any additional preliminary charge is to any preliminary charge which is different from the preliminary charge referred to in paragraph (1)(b).

Section 7 Charge sheet

(1) A charge sheet shall be in the form specified in Schedule 1 and shall state—

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

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

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

(d) any charge preferred against the accused.

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

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 prosecuting authority has preferred a charge against an accused to be tried by court-martial, the prosecuting authority 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 prosecuting authority 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 prosecuting authority proposes to put in evidence and copies of those exhibits or details of their whereabouts;

(e) notice of any additional evidence which the prosecutor intends to adduce;

(f) a record of any previous convictions of—

(i) the accused; and

(ii) all witnesses to be called by the prosecutor; and

(g) a list of all unused material.

Section 10 Notifying the court administration officer

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

(2) On receipt of a copy of the prosecution papers from the prosecuting authority, the court administration officer shall send—

(a) a copy of the prosecution papers to the Judge Advocate General; and

(b) to the commanding officer of the accused—

(i) a statement explaining the opportunities available to an accused for legal assistance, and

(ii) a statement explaining the rights of an accused facing court-martial.

Section 11 Notification of proceedings

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

(2) As soon as is practicable after receipt of

(a) the prosecution papers; and

(b) the statements provided for in rule 10(2)(b),

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), the commanding officer shall serve the accused with—

(a) the prosecution papers;

(b) the statements explaining the rights of an accused and concerning legal assistance provided for in rule 10(2)(b);

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

(d) 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; and

(e) a form for acknowledgement of receipt of the documents listed at (a) to (d).

Section 12 Discontinuing proceedings before arraignment

If before the arraignment of the accused on a charge the prosecuting authority discontinues proceedings on that charge, he shall serve notice in writing on the accused and the court administration officer.

Section 13 Referring back in a multiple charge case after charges already preferred

(1) Where—

(a) an election for court-martial trial relates to two or more preliminary charges; and

(b) the prosecuting authority considers that a charge which has already been preferred (“ the original charge ”) should be amended, or that a charge should be preferred in addition to or in substitution for the original charge,

section 52II(1) of the Act shall have effect as if it required the prosecuting authority to refer back to the commanding officer any charge (other than the original charge) which has already been preferred, as well as the charge or charges which he would otherwise be required to refer back under that section.

Section 14 Amending charges and additional charges before arraignment

(1) If before the arraignment of the accused the prosecuting authority—

(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 arraigned at the same time 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) shall not be served less than 24 hours before the time appointed for the arraignment of the accused on the original charge.

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

(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.

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

(5) Where the prosecuting authority 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 arraignment of the accused on 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 Delegation of the court administration officer’s functions

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

Section 16 Appointment of court officials

(1) The court administration officer may appoint in the order assembling the court-martial the clerk of the court.

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

(a) provost marshal;

(b) court recorder;

(c) officer of the court;

(d) interpreter,

for the purposes of any proceedings before a court-martial (including a hearing before a judge advocate sitting alone).

Section 17 Notification of time and place for hearing of the proceedings

(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) The court administration officer shall consult the judge advocate before specifying the time and place for the hearing of any proceedings.

(3) Not less than 24 hours before the time appointed for the arraignment of the accused, the court administration officer shall send the convening order to the judge advocate and serve a copy of the convening order on—

(a) the accused;

(b) the prosecuting authority; and

(c) the other members of the court.

(4) At the same time as the accused is served with a copy of the convening order in accordance with paragraph (3), the court administration officer shall notify the accused that any person whom he reasonably requires to give evidence in any proceedings before the court-martial may be notified on his behalf by the court administration officer.

(5) If the court administration officer amends or withdraws the convening order, he shall serve notice in writing on the persons listed in paragraph (3).

Section 18 Ineligibility for membership of courts-martial

(1) An officer or warrant officer shall not be eligible to be a member of a court-martial for the purpose of any proceedings against 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 serves in the same unit as the accused; or

(c) 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 of the Channel Islands, the Isle of Man, a Commonwealth country or British overseas 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.

Section 19 Notification of witnesses

(1) Where any person is required to give evidence in any proceedings before a court-martial, the court administration officer shall notify that person of the time and place at which he is required to attend.

(2) If the accused requests the court administration officer to notify a witness on his behalf under rule 17(4), the accused shall provide to the court administration officer sufficient information in sufficient time to enable notification to be made.

(3) If the court administration officer is unable to notify a witness under this rule or if, in his opinion, it is not reasonably practicable to notify a witness, he shall inform the judge advocate and the party seeking to call that witness in writing.

Section 20 Witness not called by the prosecuting authority

(1) This rule applies where the prosecuting authority 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 60.

(2) Where this rule applies, unless the accused waives the requirement, the prosecuting authority 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 21 Issue of witness summons on application to a judge advocate

(1) This rule applies where a judge advocate is satisfied that—

(a) a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any proceedings before a court-martial, and

(b) it is in the interests of justice to issue a witness summons under this rule to secure the attendance of that person to give evidence or to produce the document or thing.

(2) In such a case, the judge advocate shall, subject to the following provisions of this rule, issue a witness summons directed to the person concerned and require him to—

(a) attend before a court-martial at the time and place stated in the witness summons, and

(b) give the evidence or produce the document or thing.

(3) A witness summons may only be issued under this rule on an application; and the judge advocate may refuse to issue the witness summons if any requirement relating to the application is not fulfilled.

(4) A party who wants the judge advocate to issue a witness summons must apply as soon as practicable after becoming aware of the grounds for doing so.

(5) The party applying must—

(a) identify the proposed witness;

(b) explain—

(i) what evidence the proposed witness can give or produce,

(ii) why it is likely to be material evidence, and

(iii) why it would be in the interests of justice to issue a witness summons.

(6) The application may be made orally unless—

(a) rule 22 applies; or

(b) the judge advocate otherwise directs.

(7) An application in writing must be in the form set out in Schedule 2, containing the same declaration of truth as a witness statement.

(8) The party applying must serve the application—

(a) in every case, on the court administration officer and as directed by the judge advocate; and

(b) as required by rule 22, if that rule applies.

Section 22 Application for witness summons to produce a document, etc: special rules

(1) This rule applies to an application under rule 21 for a witness summons requiring the proposed witness—

(a) to produce in evidence a document or thing; or

(b) to give evidence about information apparently held in confidence,

that relates to another person.

(2) The application must be in writing in the form required by rule 21(7).

(3) The party applying must serve the application—

(a) on the proposed witness, unless the judge advocate otherwise directs; and

(b) on one or more of the following, if the judge advocate so directs—

(i) a person to whom the proposed evidence relates,

(ii) another party.

(4) The judge advocate must not issue a witness summons where this rule applies unless—

(a) everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the witness summons is issued; and

(b) the judge advocate is satisfied that he has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.

(5) This rule does not apply to an application for an order to produce in evidence a copy of an entry in a banker’s book for the purposes of rule 89.

Section 23 Application for witness summons to produce a document, etc: judge advocate’s assessment of relevance and confidentiality

(1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the grounds that—

(a) it is not likely to be material evidence; or

(b) even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates outweigh the reasons for issuing a witness summons.

(2) The judge advocate may require the proposed witness to make the document or thing available for the objection to be assessed.

(3) The judge advocate may invite—

(a) the proposed witness or any representative of the proposed witness; or

(b) a person to whom the document or thing relates or any representative of such a person,

to help the judge advocate assess the objection.

Section 24 Power to require advance production

(1) A witness summons which is issued under rule 21 and which requires a person to produce a document or thing as mentioned in rule 21(2) may also require him to produce the document or thing—

(a) at a place stated in the witness summons, and

(b) at a time which is so stated and precedes that stated under rule 21(2),

for inspection by the person applying for the witness summons.

Section 25 Issue of witness summons of the judge advocate’s own motion

(1) For the purpose of any proceedings before a court-martial, the judge advocate may of his own motion issue a witness summons directed to a person and require him to—

(a) attend before the court at the time and place stated in the witness summons, and

(b) give evidence, or produce any document or thing specified in the witness summons.

(2) The judge advocate may withdraw a witness summons issued under this rule if one of the following applies for it to be withdrawn—

(a) the witness, on the grounds that—

(i) he cannot give or produce evidence likely to be material evidence, or

(ii) even if he can, his duties or rights, including rights of confidentiality, or those of any person to whom the evidence relates outweigh the reasons for the issue of the witness summons; or

(b) any person to whom the proposed evidence relates, on the grounds that—

(i) that evidence is not likely to be material evidence, or

(ii) even if it is, his duties or rights, including rights of confidentiality, or those of the witness outweigh the reasons for the issue of the witness summons.

Section 26 Witness summons no longer needed

(1) If—

(a) a document or thing is produced in pursuance of a requirement imposed by a witness summons under rule 24,

(b) the person applying for the witness summons concludes that a requirement imposed by the witness summons under rule 21(2) is no longer needed, and

(c) he accordingly applies to the judge advocate for a direction that the witness summons shall be of no further effect,

the judge advocate may direct accordingly.

Section 27 Application to withdraw a witness summons

(1) The judge advocate may withdraw a witness summons if one of the following applies for it to be withdrawn—

(a) the party who applied for it, on the ground that it no longer is needed;

(b) the witness, on the grounds that—

(i) he was not aware of any application for it, and

(ii) he cannot give or produce evidence likely to be material evidence, or

(iii) even if he can, his duties or rights, including rights of confidentiality, or those of any person to whom the evidence relates outweigh the reasons for the issue of the witness summons; or

(c) any person to whom the proposed evidence relates, on the grounds that—

(i) he was not aware of any application for it, and

(ii) that evidence is not likely to be material evidence, or

(iii) even if it is, his duties or rights, including rights of confidentiality, or those of the witness outweigh the reasons for the issue of the witness summons.

(2) A person applying under this rule must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining why he wants the witness summons to be withdrawn; and

(b) serve the application on the court administration officer and as appropriate on—

(i) the witness,

(ii) the party who applied for the witness summons, and

(iii) any other person who he knows was served with the application for the witness summons.

(3) Rule 23 applies to an application under this rule that concerns a document or thing to be produced in evidence.

Section 28 Issue etc of witness summons and variation of requirements

(1) The judge advocate may issue or withdraw a witness summons with or without a hearing.

(2) A hearing under this Part must be in private unless the judge advocate otherwise directs.

(3) The judge advocate may—

(a) shorten or extend (even after it has expired) a time limit under this Part; and

(b) where a rule or direction requires an application under this Part to be in writing, allow that application to be made orally instead.

(4) Someone who wants the judge advocate to allow an application to be made orally under paragraph (3)(b) must—

(a) give as much notice as the urgency of his application permits to those on whom he would otherwise have served an application in writing; and

(b) in doing so explain the reasons for the application and for wanting the judge advocate to consider it orally.

Section 29 Service of witness summonses

(1) A witness summons issued under rule 21(2) or rule 25(1) shall be served on a 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;

(d) transmitting it to him by fax or other electronic means, but only if he has agreed to accept service by that method; or

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

Section 30 Procedure for the admission of evidence of bad character

(1) Where a party to the proceedings wishes to obtain the leave of the court under section 100(4) of the 2003 Act to adduce evidence of the bad character of a person other than the accused, he shall apply in the form set out in Schedule 2 to these Rules and the application must be received by the court administration officer and all other parties to the proceedings—

(a) not more than 14 days after the prosecuting authority has—

(i) notified the accused’s commanding officer in accordance with rule 9 that a charge or charges are to be preferred, or

(ii) disclosed the previous convictions of that non-accused; or

(b) as soon as reasonably practicable, where the application concerns a non-accused who is to be invited to give (or has given) evidence for an accused.

(2) A party to the proceedings who receives a copy of an application under paragraph (1) may oppose that application by giving notice in writing to the court administration officer and all other parties to the proceedings not more than 14 days after receiving that application.

(3) Where a prosecuting authority wishes to adduce evidence of an accused’s bad character he shall give notice in the form set out in Schedule 2 to these Rules to the court administration officer and all other parties to the proceedings not more than 14 days after preferment of a charge or charges pursuant to section 52I of the Act.

(4) Where a co-accused wishes to adduce evidence of an accused’s bad character he shall give notice in the form set out in Schedule 2 to these Rules to the court administration officer and all other parties to the proceedings not more than 14 days after the prosecuting authority has complied or purported to comply with paragraph (1)(a).

(5) Where an accused wishes to apply under section 101(3) of the 2003 Act to exclude evidence of his bad character, he shall apply in the form set out in Schedule 2 to these Rules and the application must be received by the court administration officer and all other parties to the proceedings not more than 14 days after the accused receives a notice under paragraph (3) or (4).

(6) An accused entitled to receive a notice under this rule may waive his entitlement by so informing the court administration officer and the party who would otherwise have given the notice.

(7) The judge advocate may—

(a) allow a notice or application required under this rule to be given or made in a different form, or orally; or

(b) shorten a time limit under this rule, or extend it whether or not it has expired,

if it is in the interests of justice to do so.

(8) Where this rule requires a notice or application to be given or made, it may be given or made by fax or other means of electronic communication.

Section 31 Procedure for the admission of hearsay evidence

(1) Where a party to the proceedings wishes to adduce hearsay evidence on one or more of the grounds in section 114(1)(d), section 116, section 117 and section 121 of the 2003 Act, he shall give notice in the form set out in Schedule 2 to these Rules and such notice must be received by the court administration officer and all other parties to the proceedings—

(a) where that party is an accused or co-accused, not more than 14 days after the prosecuting authority has complied or purported to comply with rule 9; or

(b) where that party is the prosecuting authority, not more than 14 days after the preferment of a charge or charges pursuant to section 52I of the Act.

(2) A party to the proceedings who receives a notice under paragraph (1) may oppose the admission of the hearsay evidence by giving notice in the form set out in Schedule 2 to these Rules to the court administration officer and all other parties to the proceedings not more than 14 days after receiving that notice.

(3) A party entitled to receive a notice under this rule may waive his entitlement by so informing the court administration officer and the party who would otherwise have given the notice.

(4) The judge advocate may—

(a) dispense with the requirement to give notice of an intention to adduce hearsay evidence;

(b) allow a notice required under this rule to be given in a different form, or orally; or

(c) shorten a time limit under this rule, or extend it whether or not it has expired,

if it is in the interests of justice to do so.

(5) Where this rule requires a notice to be given, it may be given by fax or other means of electronic communication.

Section 32 Additional evidence

If before the commencement of the trial the prosecuting authority wishes to adduce in the proceedings 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 33 Preliminary hearing

(1) The judge advocate may direct the court administration officer to list a hearing for the purpose of arraigning the accused, giving directions, orders and rulings in preparation for trial by court-martial—

(a) of his own motion; or

(b) on the application of the prosecuting authority or accused,

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

(2) For the purposes of this rule, a hearing is a preliminary hearing if it takes place before the commencement of the trial.

(3) An application for a preliminary hearing shall—

(a) be made to the court administration officer in the form set out in Schedule 2 to these Rules; and

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

(4) Subject to rule 35, the applicant shall serve notice of the application in writing on every other party to the proceedings and the court administration officer.

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

(6) Paragraph (5) 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 35.

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

(a) appoint the date, time and place at which the preliminary hearing 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 3 to these Rules to be addressed at the hearing as the judge advocate may request;

(d) subject to rule 35, 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.

(8) If in advance of the hearing the judge advocate so directs, the prosecuting authority 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 34 Preliminary hearing in open court

(1) A preliminary hearing not made under rule 35 shall, unless the judge advocate directs otherwise, take place before the judge advocate in open court.

(2) A preliminary hearing shall be a hearing before the judge advocate sitting alone.

Section 35 Preliminary hearing 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 prosecuting authority may apply for a preliminary hearing in accordance with this rule.

(2) Where the prosecuting authority applies for a preliminary hearing 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 prosecuting authority’s application under this rule, he shall direct that the preliminary hearing shall proceed without notice to the accused and without the participation of the accused.

(4) A preliminary hearing under this rule shall be before the judge advocate in chambers.

Section 36 Challenges and oaths at a preliminary hearing

(1) At the commencement of the preliminary hearing (not made under rule 35) the accused shall be entitled to object to the judge advocate and any interpreter.

(2) At the commencement of the preliminary hearing the judge advocate, or any other member of the court staff on his behalf, shall administer an oath to any interpreter.

Section 37 Substance of a preliminary hearing

(1) The parties to the proceedings shall address the judge advocate at the preliminary hearing on such of the matters contained in paragraph (4) as are indicated in the notice listing the hearing.

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

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

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

(a) such of the matters contained in Schedule 3 to these Rules as are indicated in the notice listing the hearing;

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

(c) any other question of law, practice or procedure relating to the case;

(d) subject to rule 39, any question as to severance or joinder of charges.

(5) The judge advocate may adjourn a preliminary hearing from time to time.

(6) An order or ruling made under this rule shall have effect throughout the proceedings unless it appears to the judge advocate on application made to him at any stage during the proceedings that the interests of justice require him to vary or discharge it.

(7) The court administration officer shall send a copy of the record of the preliminary hearing to the judge advocate.

Section 38 Arraignment

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

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

(3) Where the court is empowered to make a special finding, the accused may plead guilty to the offence subject to the matters as would merit the special finding.

Section 39 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 that one or more charges shall be tried by the same court;

(ii) order that only one or more of the accused shall be tried before the same court;

(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 40 Guilty plea

(1) If the accused pleads guilty to a charge, the judge advocate shall, if it appears necessary to him and before he 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 judge advocate shall not accept a plea of guilty if, having regard to all the circumstances, he considers that he should not accept the plea.

(3) Where—

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

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

the judge advocate shall record a plea of not guilty.

Section 41 Alternative charges

(1) Where an accused pleads guilty to the first of two or more alternative charges, the judge advocate, if he accepts the plea, shall record a finding of guilty in respect of that charge and shall give the prosecuting authority 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 judge advocate shall—

(a) if the prosecuting authority 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 him on the charge sheet, and

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

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

(3) If the judge advocate records a finding of guilty under paragraph (1) or (2)(a) and subsequently allows the accused to change his plea under rule 46, the judge advocate may reinstate and arraign the accused on any alternative charge which was discontinued.

Section 42 Procedure after not guilty plea

(1) This rule applies where the judge advocate has accepted a plea or pleas of not guilty.

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

(3) After the judge advocate records a plea of not guilty, he shall direct the court administration officer to list the case for trial by the court-martial.

Section 43 Procedure after guilty plea

(1) This rule applies where—

(a) the judge advocate has accepted a plea or pleas of guilty; or

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

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

(3) After the judge advocate records a plea of guilty, he shall direct the court administration officer to list the case for sentencing by the court-martial.

Section 44 Pleas of guilty and not guilty on one charge sheet

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

(a) the judge advocate has accepted a plea or pleas of guilty;

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

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

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

(3) Unless the judge advocate directs otherwise, the trial of any charge to which an accused has pleaded not guilty shall proceed in accordance with these Rules before the court-martial considers any guilty plea.

(4) The prosecuting authority, so far as is possible, shall not—

(a) address the court on any fact, or

(b) lead evidence,

relating to a charge to which any accused has pleaded guilty, except where that fact or evidence relates also to a charge to which any accused has pleaded not guilty.

(5) 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 be told of any guilty plea.

(6) The court shall proceed to sentencing of the accused.

Section 45 Dispute on facts after plea of guilty

(1) Where, after the judge advocate has recorded a plea 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 rule—

(a) the judge advocate may direct the prosecuting authority to call any witness to give evidence, and

(b) the prosecuting authority and the accused may, with the leave of the judge advocate, adduce evidence.

(3) The court shall sit in closed court while deliberating on its finding on the issue of fact.

(4) The finding of the court on the issue of fact shall be determined by a majority of the votes of the members of the court and announced in open court by the judge advocate.

(5) In the case of an equality of votes on the finding on the issue of fact the court must find for the accused.

Section 46 Change of plea

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

(2) Where an accused changes his plea under paragraph (1), the court shall proceed to sentencing of the accused.

(3) 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 judge advocate, withdraw his plea and substitute a plea of not guilty.

(4) Where an accused changes his plea under paragraph (3), the judge advocate shall discharge the court and direct the court administration officer to list the case for trial by a new court-martial.

Section 47 Additional charges after arraignment

(1) If at any time after arraignment the prosecuting authority intends to seek the leave of the judge advocate 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), he may apply for an adjournment of the trial.

Section 48 Changes to the charge sheet after arraignment

(1) If at any time after arraignment the prosecuting authority intends to—

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

(b) discontinue proceedings on a charge;

(c) prefer an additional charge;

he shall seek the leave of the judge advocate.

(2) Where the judge advocate gives leave to discontinue proceedings on a charge, he shall consider whether to give the direction provided for in section 52I(13) of the Act.

(3) Any direction referred to in paragraph (2) above shall be given in open court.

Section 49 Changes to the charge sheet by the judge advocate

If at any time after arraignment 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 judge advocate may do so.

Section 50 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) The accused may appoint a legal representative 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 representative on his behalf.

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