The Armed Forces (Service Civilian Court) Rules 2009

• Citation: S.I. 2009/1209
• Sections: 145

Section 1 Citation and commencement

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

Section 2 Interpretation: proceedings and parties

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

(a) preliminary proceedings,

(b) trial proceedings,

(c) sentencing proceedings, ...

(d) ancillary proceedings ; and

(e) variation proceedings

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

(2) In these Rules—

“ activation order ” means—

an order under paragraph 8(2)(a) or (b) of Schedule 12 to the 2003 Act (activation of suspended sentence of imprisonment); or

an order under section 214(3) (reactivation of detention and training order);

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

“ ancillary proceedings ” means proceedings under any provision of Part 15;

“ community order proceedings ” means any proceedings under Chapter 1 of Part 15;

“domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;

“ preliminary proceedings ” means any proceedings of the court held for the purpose of—

the court making its decision in accordance with section 279 (consideration of trial by Court Martial);

allowing the defendant to exercise his right to elect trial by the Court Martial;

arraigning a defendant on a charge to be tried in the trial proceedings; or

giving directions, orders or rulings for the purpose of the trial proceedings;

“ related proceedings ”, in relation to preliminary proceedings, means—

trial proceedings in respect of any charge to which the preliminary proceedings relate;

any further preliminary proceedings in relation to such trial proceedings; and

any sentencing proceedings in respect of any offence found proved in such trial proceedings, or as respects which the offender pleads guilty in the preliminary proceedings or related proceedings;

“ sentencing proceedings ” means proceedings for the sentencing of a person convicted by the court on a plea of guilty or in trial proceedings and does not include variation proceedings ;

“ trial proceedings ” means proceedings for the trial of a charge by the court, and does not include sentencing proceedings or variation proceedings;

“ variation proceedings ” means proceedings under Part 14A.

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

(a) a person to whom the proceedings relate;

(b) the Director; and

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

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

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

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

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

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

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

(f) in the case of a hearing under rule 108 (certification of contempt of court), the person whose offence the court is to consider certifying.

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

(5) In these Rules—

“ defendant ” means a person against whom a charge allocated for Service Civilian Court trial has been brought;

“ the Director ” means the Director of Service Prosecutions.

Section 3 Interpretation: general

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

(2) In these Rules—

“ the Act ” means the Armed Forces Act 2006;

“ the 1967 Act ” means the Criminal Justice Act 1967 ;

“ the 1999 Act ” means the Youth Justice and Criminal Evidence Act 1999 ;

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

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

“ advance information ” has the meaning given by rule 30(2);

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

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

“the complainant”, in relation to any offence (or alleged offence), means a person against or in relation to whom the offence was (or is alleged to have been) committed;

“ the court ” means the Service Civilian Court;

“ DX ” means document exchange;

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

“ the judge advocate ”, in relation to any proceedings, means the judge advocate specified for the proceedings under section 278(2);

“ legal representative ” means a person appointed by a party to proceedings under rule 26;

“live link”, has the meaning given by rule 18(3)(a);

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

“ unit ” means—

a naval ship or establishment;

any body of members of Her Majesty's forces formed under the command of a person appointed to be the commanding officer of the body; or

an air force station.

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

Section 3A The overriding objective

(1) The overriding objective of these Rules is that cases be dealt with justly.

(2) Dealing with a case justly includes—

(a) acquitting the innocent and convicting the guilty;

(b) treating all participants with politeness and respect;

(c) dealing with the prosecution and defence fairly;

(d) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

(e) respecting the interests of witnesses and victims and keeping them informed of the progress of the case;

(f) dealing with the case efficiently and expeditiously;

(g) ensuring that appropriate information is available to a judge advocate or the court when either custody before or after charge or sentence are considered; and

(h) dealing with the case in ways that take into account—

(i) the gravity of the offence alleged;

(ii) the complexity of what is in issue;

(iii) the severity of the consequences for the defendant and others affected;

(iv) the needs of other cases; and

(v) the need to maintain the operational effectiveness of Her Majesty’s forces.

(3) In this rule “ custody before or after charge ” means the keeping of the accused in service custody under Part 4 of the 2006 Act.

Section 3B The duty of the participants in a case

(1) Each participant, in the conduct of each case, must—

(a) prepare and conduct the case in accordance with the overriding objective;

(b) comply with these Rules and any directions relating to the case given by a judge advocate or the court;

(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules or any direction. A failure is significant if it might hinder the court in furthering the overriding objective.

(2) Anyone involved in any way with a case is a participant in its conduct for the purposes of this rule.

Section 3C The application by the court of the overriding objective

The court or the judge advocate for any proceedings before the court must further the overriding objective, in particular when—

(a) exercising any power given to the court or the judge advocate by legislation (including these Rules); or

(b) interpreting any rule.

Section 4 Interpretation of Part 2

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

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

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

Section 5 Service on a person to whom proceedings relate

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

(a) on him personally;

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

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

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

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

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

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

(2) In this rule references to the person's legal representative are to any person of whose name and address the court administration officer has been notified under rule 26(4).

Section 6 Service on the court administration officer

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

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

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

Section 7 Service on the Director

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

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

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

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

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

Section 8 Service on other individuals

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

(a) on the individual personally;

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

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

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

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

Section 9 Service on a corporation

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

(a) by post to—

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

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

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

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

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

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

Section 10 Service by another method

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

(2) A direction under this rule—

(a) must specify—

(i) the method to be used; and

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

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

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

Section 11 Service by commanding officer

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

Section 12 Service by fax or electronic means

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

Section 13 Date of service

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

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

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

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

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

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

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

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

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

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

Section 14 Proof of service

(1) Where—

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

(b) a certificate is produced which—

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

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

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

(2) Where a certificate is produced which—

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

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

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

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

Section 15 The court administration officer

(1) The court administration officer must exercise his functions subject to any direction given by a judge advocate.

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

Section 16 Listing of proceedings

(1) Subject to the provisions of this rule, proceedings shall commence at such time and place as may be appointed by the court administration officer.

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

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

Section 17 Notification of proceedings

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

(a) each person to whom the proceedings relate;

(b) the legal representative (if any) of each such person;

(c) the commanding officer of each such person;

(d) the Director;

(e) where the proceedings are for the hearing of an application, the applicant; and

(f) any such other person as the Judge Advocate General may direct.

Section 18 Live links

(1) Any person may (and, if in service custody, must) attend any proceedings by live link, if a judge advocate so directs.

(2) A person who attends any proceedings by live link, and could give oral evidence in the proceedings if he were in the place where the proceedings are being held, may give evidence by live link.

(3) In these Rules—

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

(b) references to bringing a person before the court include bringing him to a place from which he can attend proceedings by live link.

(4) A direction under this rule may be given by—

(a) the judge advocate for the proceedings; or

(b) the judge advocate for any preliminary proceedings as respects which the proceedings are related proceedings.

(5) Rule 36(3) (effect of a direction given in preliminary proceedings) applies to a direction under this rule given in preliminary proceedings.

(6) Where a direction is given under this rule in relation to a witness, the witness may not give evidence otherwise than by live link without the leave of the judge advocate.

(7) A judge advocate may give a direction under this rule, or give permission for the purposes of paragraph (6)—

(a) on an application by a party to the proceedings; or

(b) of his own motion.

Section 19 Proceedings in absence of defendant etc

(1) Proceedings may be held in the absence of any person to whom they relate, if the court so directs.

(2) This rule does not permit a defendant to be arraigned in his absence.

(3) The court may not impose a driving disqualification order in the absence of an offender, unless the court is satisfied that the offender was informed prior to the hearing that the court was considering disqualification.

Section 20 Oaths and affirmations

(1) This rule applies where under these Rules an oath is required to be administered to a person.

(2) Sections 1 and 3 to 6of the Oaths Act 1978 shall apply, as modified by paragraph (3), as they would apply if the person were required to take an oath in England and Wales.

(3) Where section 1 or 6 of that Act applies by virtue of this rule, the reference in that section to the words of the oath prescribed by law is to be read as a reference to the words prescribed by Schedule 1 for a person of the class to which the person belongs.

Section 21 Interpretation, translation and communication through an intermediary

(1) Where a person to whom any proceedings relate is due to attend a hearing, the court administration officer, unless satisfied that the person does not need interpretation, shall appoint an interpreter to act at the hearing.

(2) Before an interpreter begins to act at a hearing, an oath shall be administered to the interpreter.

(3) Before an interpreter is sworn, the interpreter’s name shall be read out, and any party to the proceedings may object to the interpreter on any reasonable ground.

(4) If the judge advocate upholds any such objection, the interpreter shall not be sworn, and the court administration officer shall appoint another interpreter.

(5) On application or on his own initiative, the judge advocate may require a written translation of any document or part of a document to be provided for a person to whom any proceedings relate, and who needs interpretation, unless―

(a) translation of that document, or part, is not needed to explain the issues arising in the proceedings in relation to the person (including, in the case of trial proceedings, the case against the defendant); or

(b) the person agrees to do without, and the judge advocate is satisfied—

(i) that the agreement is clear and voluntary; and

(ii) that the person has had legal advice or otherwise understands the consequences.

(6) On application by a person to whom any proceedings relate, the judge advocate shall give any direction which he thinks appropriate, including a direction for interpretation by a different interpreter, where―

(a) no interpreter is appointed, or no interpretation provided;

(b) no translation is ordered, or provided, in response to a previous application by the person; or

(c) the person complains about the quality of any interpretation or translation provided.

(7) In relation to a person who has a hearing or speech impediment, references in these Rules to an interpreter include a person appointed—

(a) to communicate to the person anything said at the hearing, and explain it so far as necessary to enable the person to understand it, or

(b) to communicate any answers given by the person, and any other matters that the person seeks to convey, and explain them so far as necessary to enable the court and others present at the hearing to understand them,

and references to interpretation shall be construed accordingly.

(8) In its application by virtue of paragraph (7), nothing in this rule is limited by anything in Chapter 6 of Part 12 (special measures directions).

(9) In this rule references to acting at a hearing include assisting the person to communicate with the person’s legal representative during the hearing; and in relation to such assistance paragraph (7)(b) has effect as if the reference to the court and others present at the hearing were to the legal representative.

Section 21A Interpretation, translation for persons other than a person to whom proceedings relate

(1) Where the complainant is due to attend a hearing as a witness, the court administration officer, where satisfied that the person needs interpretation, shall appoint an interpreter to act at the hearing.

(2) The court administration officer may also appoint an interpreter for any other witness who is required to give evidence at a hearing, other than a person to whom any proceedings relate.

(3) Before an interpreter begins to act at a hearing, an oath shall be administered to the interpreter.

(4) Before an interpreter is sworn, the interpreter’s name shall be read out, and any party to the proceedings may object to the interpreter on any reasonable ground.

(5) If the judge advocate upholds any such objection, the interpreter shall not be sworn, and the court administration officer shall appoint another interpreter.

(6) On application or on his own initiative, the judge advocate may require a written translation of any document or part of a document to be provided for a complainant or other person who attends a hearing as a witness (other than a person to whom any proceedings relate) and who needs interpretation.

Section 22 Record of proceedings

(1) A record must be made of any proceedings.

(2) The record of proceedings must include—

(a) a record of the court's decision under section 279(1) (trial by the Court Martial);

(b) a record of the defendant's decision after being given the opportunity to elect Court Martial trial;

(c) a record of any plea offered, and whether any plea of guilty was accepted by the court;

(d) a record of any finding;

(e) a record of any sentence passed, order made or direction given by the court;

(f) a record of any order made, and any direction or ruling given, by the court;

(g) a sound recording of the proceedings, and any transcript of it (signed by the transcriber) ;

(h) a record of the identity of any interpreter;

(i) a record of any decision on an application under rule 21(5);

(j) a record of any agreement under rule 21(5)(b) to do without a written translation of a document or part of a document; ...

(k) a record of any direction given under rule 21(6) ; and

(l) a record of any decision on an application under rule 21A(6).

(3) The court administration officer shall send a copy of the record of any preliminary proceedings to—

(a) the Judge Advocate General;

(b) the Director; and

(c) each defendant.

(4) Where a direction under rule 34 (preliminary proceedings in chambers) was given in relation to the proceedings, paragraph (3) shall have effect as if sub-paragraph (c) were omitted; and, where such a direction was given in relation to part of the proceedings, paragraph (3)(c) shall have effect in relation only to the record of the remainder.

(5) The record of proceedings shall be kept in the custody of the Judge Advocate General, together with any exhibits retained under rule 23 and any file of correspondence or other papers maintained by the court administration officer in connection with the proceedings, for at least six years from—

(a) in the case of trial proceedings in which a defendant is convicted, the conclusion of the sentencing proceedings in relation to him;

(b) in the case of preliminary proceedings where related trial proceedings take place but no defendant is convicted, the conclusion of the trial proceedings;

(c) in any other case, the conclusion of the proceedings.

(6) A copy of the record of proceedings, or any part of it, shall be supplied on request—

(a) to any party to the proceedings, without charge, and

(b) to any other person, on payment of such charge as may be fixed by the Judge Advocate General,

but this is subject to paragraphs (7) and (8).

(7) Paragraph (6) does not require the supply of—

(a) a copy of the record of any proceedings held in camera, or in relation to which a direction under rule 34 (preliminary proceedings in chambers) was given;

(b) a copy of any part of a record of proceedings which relates to a part of the proceedings which was held in camera, or in relation to which such a direction was given.

(8) If, following a request for the supply of a copy of the record of proceedings or any part of it, the Secretary of State certifies that it is requisite for reasons of security that the record or part requested (or any part of it) should not be disclosed, paragraph (6) does not require the supply of the record or part requested (or the part of it to which the certificate relates).

Section 23 Exhibits

(1) Any exhibit admitted in evidence must be marked sequentially with either a number or a letter.

(2) Each exhibit, or a label attached to it, must be signed by or on behalf of the court.

(3) Each exhibit must be retained with the record of proceedings, unless the court otherwise directs.

Section 24 Termination of proceedings

(1) The court may terminate any proceedings if it considers it in the interests of justice to do so.

(2) The Judge Advocate General shall terminate proceedings if the judge advocate dies or is otherwise unable to continue to attend the proceedings.

(3) The termination of trial proceedings under this rule shall not bar further trial proceedings in relation to the same charge or charges.

(4) The termination of sentencing proceedings under this rule or rule 46(4) (change of plea) shall not bar further sentencing proceedings in relation to the same offence or offences.

(5) The termination of activation proceedings under this rule shall not bar further activation proceedings held by virtue of the same conviction.

Section 25 Circumstances not provided for

Subject to any other enactment (including any other provision of these Rules), the judge advocate shall ensure that proceedings are conducted—

(a) in such a way as appears to him most closely to resemble the way in which comparable proceedings in magistrates' courts in England and Wales would be conducted in comparable circumstances; and

(b) if he is unable to determine how comparable proceedings in magistrates' courts in England and Wales would be conducted in comparable circumstances, in such a way as appears to him to be in the interests of justice.

Section 26 Legal representatives

(1) A party to proceedings may appoint a legal representative to act for him in relation to the proceedings.

(2) A person may not be appointed as a legal representative unless—

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

(b) he is an advocate or a solicitor in Scotland;

(c) he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or

(d) he is a person having in any of the Channel Islands, the Isle of Man, a Commonwealth country or a 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.

(3) Any right conferred on a party to proceedings by these Rules may be exercised, and any duty imposed on him by these Rules (except pleading to a charge) discharged, by his legal representative on his behalf.

(4) A party who appoints a legal representative shall notify the court administration officer of the legal representative's name and address.

Section 27 Parent or guardian of young civilian

(1) This rule applies where a person to whom proceedings relate (“the young person”) is under the age of 18 years at the commencement of the proceedings.

(2) Where a party to the proceedings or the court administration officer is required to serve any document on the young person under these Rules, he must also serve it on the young person's parent or guardian.

(3) Where the young person has not appointed a legal representative—

(a) any right conferred on a party to proceedings by these Rules may be exercised, and any duty imposed on him by these Rules (except pleading to a charge) discharged, by his parent or guardian on his behalf; and

(b) the court may give leave for his parent or guardian to represent him in any proceedings.

Section 28 Arrest by service police etc before arraignment

Where—

(a) a charge is allocated for Service Civilian Court trial, and

(b) the defendant has not been arraigned before the court,

section 111 shall apply as if the defendant had been so arraigned and proceedings before the court had not concluded.

Section 29 Warrant for arrest by civilian police

(1) Where a judge advocate has power to direct the arrest of a defendant under section 111 (including that section as applied by rule 28), he also has power to issue a warrant for the defendant's arrest.

(2) A warrant issued under this rule—

(a) must be addressed to one or more officers of a civilian police force;

(b) must state the offence with which the defendant is charged; and

(c) must state that he must be transferred to service custody as soon as is practicable after his arrest.

(3) Where a defendant is arrested under a warrant issued under this rule and is transferred to service custody, subsection (4) of section 111 shall apply as if he had been arrested under that section.

Section 30 Service of advance information

(1) Where a charge is allocated for Service Civilian Court trial, the Director must, as soon as is practicable—

(a) serve advance information in relation to all defendants on the court administration officer; and

(b) serve advance information in relation to each defendant on—

(i) that defendant; and

(ii) that defendant's legal representative (if any).

(2) “ Advance information ”, in relation to any defendant, means—

(a) copies of the statements of those witnesses on whom the Director intends to rely against the defendant;

(b) a list of all exhibits which the Director intends to adduce in evidence against the defendant, and a statement of where any non-documentary exhibits are held; and

(c) a transcript of any sound recording of an interview with the defendant.

(3) Where, after the Director has served advance information on a defendant, he intends to adduce against the defendant any evidence not included in the advance information, he must as soon as is practicable serve on the defendant and the court administration officer such documents as he would have been required to include in the advance information if he had had that intention at the time when he served advance information.

(4) Where paragraph (3) applies in the course of trial proceedings, the reference in that paragraph to the court administration officer is to be read as a reference to the court.

(5) Where the Director no longer intends to call a witness whose statement he has served under this rule, he must as soon as is practicable give notice of that fact to every defendant.

Section 31 Information as to possibility of activation order etc

(1) Where a charge is such that, if a defendant to the charge were convicted of it by the court, the court would have power to make an activation order, the advance information in relation to the defendant must include a notice that the court would have that power if he were convicted.

(2) Where a defendant—

(a) has been conditionally discharged by virtue of Schedule 3 to the Act, and

(b) is charged with an offence committed during the period of conditional discharge,

the advance information in relation to him must include a notice that, if he were convicted of the offence, the court would have power to deal with him under section 186(3) for the offence for which he was conditionally discharged.

(3) Where an overseas community order is in force in respect of a defendant, the advance information in relation to him must include a notice that, if he were convicted of the offence while the overseas community order is in force, the court would have the powers conferred by paragraph 23(2) of Schedule 10 to the Sentencing Code .

Section 32 Listing of initial preliminary proceedings

On receipt of the advance information in relation to a charge, the court administration officer must—

(a) forward it to the Judge Advocate General and request him to specify a judge advocate for preliminary proceedings in relation to the charge; and

(b) appoint a time and place for the commencement of the preliminary proceedings.

Section 33 Listing of further preliminary proceedings

(1) The court administration officer must appoint a time and place for further preliminary proceedings if so directed by—

(a) the judge advocate for any preliminary proceedings; or

(b) the Judge Advocate General.

(2) The judge advocate for any preliminary proceedings may give a direction under this rule—

(a) on the oral application of the Director or a defendant; or

(b) of his own motion.

(3) The Judge Advocate General may give a direction under this rule on the written application of the Director or a defendant.

(4) A written application for a direction under this rule—

(a) must be made to the court administration officer;

(b) must specify the reason for which further preliminary proceedings are required;

(c) must include an estimate of the likely length of the further preliminary proceedings; and

(d) subject to rule 34 (preliminary proceedings in chambers without notice), must be served on every other party to the proposed trial proceedings.

Section 34 Preliminary proceedings in chambers without notice to defendant

(1) On application by the Director, the judge advocate for any preliminary proceedings may direct that the proceedings are, or that any part of the proceedings is—

(a) where there is one defendant, to be held in his absence and without notice to him;

(b) where there are two or more defendants, to be held in the absence of both or all of them and without notice to any of them.

(2) The court may not make a decision required by section 279(1) (consideration of trial by Court Martial) at a preliminary proceeding where a judge advocate has made a direction under this rule.

Section 35 Outline of prosecution case

A judge advocate may direct the Director to serve on each defendant and the court administration officer, before any preliminary proceedings, an outline of the prosecution case.

Section 36 Powers of the court at a preliminary hearing

(1) In preliminary proceedings the court may give such directions as appear to it to be necessary to secure the proper and efficient management of the case.

(2) Without prejudice to paragraph (1), the court may make an order or ruling on—

(a) whether the court or the Court Martial should try the case;

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

(c) any question as to the joinder or severance of charges; or

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

(3) Any direction given in preliminary proceedings shall have effect throughout any related proceedings unless varied or discharged by—

(a) the judge advocate who gave it; or

(b) the judge advocate for any related proceedings.

(4) Any order or ruling made in preliminary proceedings shall have effect throughout any related proceedings unless varied or discharged by the court.

Section 37 Joinder of charges

(1) The court may try two or more charges together, if they are included in the same charge sheet.

(2) Where in accordance with regulations made under section 128 the charges in two or more charge sheets could have been included in the same charge sheet, the Director may consolidate both or all the charge sheets into one.

(3) Where the Director consolidates two or more charge sheets into one, he must immediately serve the new charge sheet on the court administration officer and each defendant.

Section 38 Severance of charges

Where a defendant is charged with more than one offence in the same charge sheet, the court may direct, before the commencement of trial proceedings in relation to the charge sheet, that the charges be divided between two or more charge sheets.

Section 39 Severance of defendants

Where two or more defendants are charged in a single charge, the court may direct, before the commencement of trial proceedings in relation to the charge, that the charge be replaced with charges against the defendants separately and in separate charge sheets.

Section 40 Amendment of charges

(1) Where in preliminary proceedings (whether before or after arraignment) or trial proceedings it appears to the court that the charge sheet or any charge is defective, it shall make such order for the amendment of the charge sheet or charge (as the case may be) as appears necessary to meet the circumstances of the case.

(2) But the court may not make an order under this rule if, in all the circumstances, the required amendments cannot be made without injustice.

(3) Without prejudice to the generality of paragraph (2), in relation to a proposed amendment in preliminary proceedings the circumstances relevant for the purposes of that paragraph include (in particular) whether the defendant has been arraingned.

(4) Where an order is made under this rule, the Director shall serve the amended charge sheet on every defendant in the way that would be required by regulations made under section 128—

(a) if the amendment had been made otherwise than in accordance with an order made under this rule; and

(b) where the amendment is made after arraignment, if it had been made before arraingnment.

Section 41 Consequences of exercise of powers under this Part

(1) Where in preliminary proceedings the court is of opinion that, in consequence of the exercise of any power of the court under this Part, it is in the interests of justice—

(a) that the commencement of the trial proceedings be postponed, or

(b) that a defendant be arraigned or re-arraigned on any charge,

the court shall make such order or give such direction as appears necessary.

(2) Where in trial proceedings the court is of the opinion that in consequence of the exercise of any power of the court under this Part it is in the interests of justice—

(a) that the proceedings be adjourned, or

(b) that a defendant be arraigned or re-arraigned on any charge,

it shall make such order or give such direction as appears necessary.

Section 42 Consideration of trial by the Court Martial

(1) The court shall make its decision in accordance with section 279 before the defendant is arraigned and shall give its reasons for its decision in open court.

(2) If the court decides that it should try the charge, the defendant shall be asked if he wants to elect trial by the Court Martial.

(3) If the defendant (or if more than one person is jointly charged, any of the defendants) does not elect trial by the Court Martial, the court may arraign the defendant.

(4) At any time before arraignment, a defendant may give notice that he elects to be tried by the Court Martial.

(5) For the purposes of paragraph (4), if there is more than one charge or more than one charge sheet “ arraignment ” shall mean arraignment on all of the charges.

(6) A defendant who has indicated that he wishes to elect trial by the Court Martial may, at any time before arraignment by the Court Martial, give notice that he withdraws his election.

(7) Any notice under paragraphs (4) or (6), unless given in court during proceedings in relation to the matter, shall be in writing and shall be served on—

(a) the court administration officer;

(b) the Director;

(c) any other defendant.

(8) Nothing in this rule shall affect the provisions in section 280(3) or (5) (election in respect of one defendant or one charge, as the case may be, takes effect in respect of all of the defendants or all of the charges).

Section 43 Arraignment

(1) A defendant shall be arraigned in preliminary proceedings on each charge brought against him, but need not be arraigned on every charge at the same time.

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

(3) Where a defendant pleads guilty to a charge, the court may accept the plea if satisfied that the defendant 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.

(4) Where the court accepts a plea of a guilty to a charge—

(a) the defendant shall stand convicted of the charge; and

(b) unless there is a further charge against him to which he has not pleaded guilty (or as respects which a plea of guilty has not been accepted by the court), the court administration officer shall appoint a time and place for sentencing proceedings.

(5) Where—

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

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

the court shall record a plea of not guilty.

Section 44 Order that charge lie on the file

Where the court accepts a plea of guilty to any charge, it may (with the Director's consent) order that any other charge—

(a) to which the defendant has not pleaded,

(b) to which the defendant has pleaded not guilty, or

(c) as respects which the court has recorded a plea of not guilty under rule 43(5),

is to lie on the file, not to be proceeded with without the leave of the court or the Court Martial.

Section 45 Offer of no evidence

(1) Where—

(a) a defendant has pleaded not guilty to a charge, or the court has recorded a plea of not guilty to the charge under rule 43(5), and

(b) the Director indicates that he intends to offer no evidence on the charge,

the court shall record a finding of not guilty in respect of the charge.

(2) A finding of not guilty recorded under this rule shall have effect for all purposes as an acquittal by the court.

Section 46 Change of plea

(1) At any time before the court determines the finding, a defendant who has pleaded not guilty to the charge may withdraw his plea and substitute a plea of guilty.

(2) But the court may not accept a plea of guilty substituted under paragraph (1) unless satisfied that the defendant understands the matters mentioned in rule 43(3).

(3) At any time before the court passes sentence for an offence, a defendant who has pleaded guilty to the charge of the offence may, with the leave of the court, withdraw his plea and substitute a plea of not guilty.

(4) Where a defendant changes his plea under paragraph (3)—

(a) in the course of sentencing proceedings in relation to the offence, or

(b) in the course of trial proceedings in relation to another charge,

the court shall terminate the proceedings.