The Armed Forces (Summary Appeal Court) Rules 2009

• Citation: S.I. 2009/1211
• Sections: 138

Section 1 Citation and commencement

These Rules may be cited as the Armed Forces (Summary Appeal 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 includes—

(a) preliminary proceedings,

(b) appeal proceedings,

(c) variation proceedings,

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

(2) In these Rules—

“ ancillary proceedings ” means proceedings under—

rule 16 for an extension of the initial period or an application for leave to appeal out of time; and

rule 17 for the consideration of a matter referred to the court by the reviewing authority under section 152(4) or (7);

“ appeal proceedings ” means proceedings for the hearing of an appeal under section 146;

“ preliminary proceedings ” means any proceedings of the court held for the purpose of giving directions, orders or rulings for the purpose of appeal or ancillary proceedings;

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

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

any further preliminary proceedings in relation to such appeal proceedings;

“ variation proceedings ” means proceedings under Part 12A.

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

(a) a person to whom the proceedings relate (“ the appellant ”);

(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 preliminary or appeal proceedings, an appellant;

(b) in the case of a hearing under rule 89 (certification of contempt of court), the person whose offence the court is to consider certifying;

(c) in the case of variation proceedings, an offender in respect of whom a sentence which falls to be varied has been imposed or confirmed.

(5) In these Rules—

“ the Director ” means the Director of Service Prosecutions;

“ appellant ” means a person who brings an appeal under section 141 or on whose behalf a reviewing authority seeks leave to refer a finding or punishment to the court under section 152.

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 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 42(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 Summary Appeal Court;

“ DX ” means document exchange;

“ the judge advocate ”, in relation to any proceedings, means the judge advocate specified for the proceedings under section 142(3);

“ lay members ” means those persons who are members of the court by virtue of section 142(1)(b) or (c);

“ legal representative ” means a person appointed under rule 41;

“ live link ” has the meaning given by rule 25(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.

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, victims and lay members (if any) 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 post in a letter addressed to him at his unit;

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

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

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

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

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

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

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

(2) In this rule references to the person's legal representative are to any person of whose name and address the court administration officer has been notified under rule 41(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) on a member of that Service personally, 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 the corporation has no readily identifiable principal office in the United Kingdom, any place in the United Kingdom where it carries on its activities or business; or

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

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

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

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

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

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 Notice of appeal

(1) An appeal under section 141 shall be brought by serving (before the expiry of the initial period) a written notice of appeal on the commanding officer.

(2) The commanding officer shall serve the notice on the court administration officer and a copy of the notice and the documents required under paragraph (3) on the Director.

(3) The documents are—

(a) the written record of the summary hearing;

(b) a copy of the disciplinary record of the appellant;

(c) a copy of any witness statement prepared for the purposes of the summary hearing;

(d) details of all exhibits that form part of the evidence (whether used or unused at the summary hearing) and where and when they can be inspected;

(e) a list of persons whose evidence was not adduced at the summary hearing but who appear to the commanding officer to be potential witnesses in the proceedings before the court;

(f) any material in the possession of the commanding officer which is not annexed or referred to in the written record but which in his opinion may be material to the proceedings before the court;

(g) if the commanding officer was granted authority to hear the charge summarily, a copy of any document conveying that authority;

(h) if the commanding officer had extended powers for the purposes of section 133(1)(a) or (2), 134(1), 135(1) or 136(1)(b), a copy of any document conveying those powers; and

(i) a document specifying the appellant's age, his rank or rate and any recognised acts of gallantry.

(4) In this rule—

“ disciplinary record ” means all formal disciplinary records of the appellant maintained and held by any of Her Majesty's forces;

“ initial period ” has the meaning given in section 141(2)(a); and

“ written record ” has the meaning given in Rules made under section 153.

Section 16 Application to extend initial period or for leave to appeal out of time

(1) An application, under section 141(2)(b) (extension of initial period) or 141(3) (leave to appeal out of time) shall be made in writing to the commanding officer and shall state—

(a) if made under section 141(2)(b)–

(i) why the applicant is not able to bring an appeal within the initial period; and

(ii) what longer period he wishes the court to grant; or

(b) if made under section 141(3)–

(i) why the applicant did not appeal within the initial period; and

(ii) be accompanied by the proposed notice of appeal.

(2) The commanding officer shall serve the application together with a copy of the written record on the court administration officer who shall forward them to the Judge Advocate General and the Director.

(3) The Judge Advocate General may—

(a) grant the application;

(b) grant the application and substitute for any period stated in the application a different period;

(c) inform the court administration officer that he is minded to dismiss the application without a hearing; or

(d) direct a hearing of the application.

(4) Where the Judge Advocate General is minded to dismiss the application without a hearing, the court administration officer shall notify the applicant in writing of that fact and provide a copy of such notification to the commanding officer.

(5) Where the applicant is given notice under paragraph (4), the application shall be treated as dismissed unless, not more than 14 days from the receipt of the notice, the applicant gives notice in writing to the commanding officer that he requires a hearing of the application.

(6) The commanding officer must forward any notice given under paragraph (5) to the court administration officer and the Director.

(7) There shall be a hearing of the application if—

(a) the Judge Advocate General directs a hearing; or

(b) the applicant requires one.

(8) A hearing of the application shall be before a judge advocate.

(9) At a hearing of the application—

(a) the applicant may address the judge advocate; and

(b) the Director may, with leave, address the judge advocate.

(10) The court administration officer shall serve notice of any decision to grant or refuse an application under this rule on—

(a) the applicant;

(b) the Director; and

(c) the commanding officer.

(11) In this rule, “ initial period ” has the meaning given in section 141(2)(a).

Section 17 Application by the reviewing authority

(1) An application for leave to refer a finding or punishment to the court under–

(a) section 152(4) (as on appeal), or

(b) section 152(7) (referral of new matters after appeal hearing),

shall be made in writing to the court administration officer.

(2) Such an application must—

(a) state why the reviewing authority considers it appropriate that the court consider an appeal; and

(b) be accompanied by any other documents the reviewing authority considers relevant to the determination of the application.

(3) The court administration officer shall forward the application to the Judge Advocate General, the Director, the appellant and the commanding officer.

(4) The reviewing authority may withdraw an application at any time before the determination of the application for leave by giving notice in writing to the court administration officer.

(5) The Judge Advocate General may—

(a) grant the application;

(b) inform the court administration officer that he is minded to dismiss the application without a hearing; or

(c) direct a hearing of the application.

(6) Where the Judge Advocate General is minded to dismiss the application without a hearing, the court administration officer shall notify the reviewing authority, the appellant and the commanding officer in writing of that fact.

(7) Where the reviewing authority and the appellant are given notice under paragraph (6), the application shall be treated as dismissed unless the reviewing authority gives notice in writing to the court administration officer, or the appellant gives notice in writing to his commanding officer, as the case may be, before the end of the period of 14 days beginning with the date of the notice under paragraph (6), that he requires a hearing of the application.

(8) Where an appellant has given notice to his commanding officer under paragraph (7) the commanding officer must forward any such notice to the court administration officer and the Director.

(9) There shall be a hearing of the application if—

(a) the Judge Advocate General directs a hearing; or

(b) the reviewing authority or the appellant requires a hearing under paragraph (7).

(10) A hearing of the application shall be before a judge advocate.

(11) At a hearing of the application—

(a) the reviewing authority and appellant may address the judge advocate; and

(b) the Director may, with leave, address the judge advocate.

(12) The court administration officer shall serve notice of any decision to grant or refuse an application under this rule on—

(a) the reviewing authority;

(b) the appellant;

(c) the Director; and

(d) the commanding officer.

Section 18 Notification by the reviewing authority

(1) Notification under section 152(6) shall be made in writing to the court administration officer.

(2) The court administration officer shall forward the notification to the Director and the judge advocate hearing the appeal.

(3) A copy of the notification shall be served on the appellant.

Section 19 Director to give notice of intention on receipt of notice of appeal

(1) Where—

(a) a notice of appeal under rule 15,

(b) notice that an application under rule 16 has been granted, or

(c) notice that an application under rule 17 has been granted,

has been served on the Director and that notice relates to one or more appeals against finding, the Director shall, within 28 days from the date of that notice, give notice in writing to the court administration officer indicating whether or not he intends to contest any such appeal.

(2) Where the Director has given notice under paragraph (1) that he intends to contest an appeal, he may at any time prior to the hearing of the appeal give notice that he no longer intends to contest it; and any such notice shall have effect for the purposes of these Rules as a notice under paragraph (1) that he does not intend to contest the appeal.

(3) Where the Director does not within the period specified in paragraph (1) give notice that he intends to contest the appeal, the failure to give notice shall have the effect as a notice under paragraph (1) that he does not intend to contest the appeal.

(4) On the application of the Director, the Judge Advocate General may, if he considers it in the interests of justice to so do, extend the period at paragraph (1).

Section 20 Powers of the court in uncontested appeals

(1) Where the Director gives notice under rule 19(1) that he does not intend to contest an appeal, the court shall quash the finding against which the appeal is brought.

(2) Where any punishment awarded relates to one or more findings each of which is the subject of an appeal and in respect of each of which the Director has given notice under rule 19(1) that he does not intend to contest the appeal—

(a) the power of the court to quash the finding(s) under section 147(1)(a) may be exercised by the Judge Advocate General without a hearing; and

(b) any decision of the Judge Advocate General in exercise of those powers shall be recorded in writing and dated and signed by him.

(3) The court administration officer shall serve a copy of any decision of the Judge Advocate General under this rule on—

(a) the appellant;

(b) the commanding officer;

(c) the Director; and

(d) where the appeal falls to be considered by the court on a reference made by the reviewing authority, the reviewing authority.

Section 21 The court administration officer

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

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

Section 22 Listing of proceedings

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

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

Section 23 Notification of proceedings

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

(a) each person to whom the proceedings relate;

(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 or Judge Advocate General may direct.

(2) At the same time as serving notice under paragraph (1) of the time and place appointed for the commencement of any proceedings with lay members, or as soon as is reasonably practicable after doing so, the court administration officer must serve on the persons mentioned in that paragraph a notice of the name and relevant particulars of—

(a) each of the lay members; and

(b) any person specified as a waiting member under rule 38.

(3) In paragraph (2), “ relevant particulars ” means his rank or rate and his unit.

Section 24 Abandonment of appeal

Where—

(a) an appellant fails to appear before the court at the time appointed for the commencement or resumption of the appellate proceedings, and

(b) the judge advocate considers that there is no reasonable explanation for the failure to appear,

the judge advocate may direct that the appeal be treated as abandoned.

Section 25 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 47(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 26 Proceedings in absence of appellant etc

Proceedings may be held in the absence of any person to whom they relate, if the judge advocate so directs.

Section 27 Deliberation in private

(1) While the court is deliberating on—

(a) finding, or

(b) any other matter as respects which the judge advocate directs that this paragraph is to apply,

no other person may be present.

(2) While the court is deliberating on—

(a) punishment,

(b) an issue of fact being tried under rule 84, or

(c) any other matter as respects which the judge advocate directs that this paragraph is to apply,

no other person may be present except a person in attendance for instruction.

Section 28 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 6 of 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 29 Interpretation, translation and communication through an intermediary

(1) Where an appellant is due to attend a hearing, the court administration officer, unless satisfied that the appellant 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 an appellant 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 appellant (including, in the case of an appeal against finding, the case against the appellant); or

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

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

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

(6) On application by the appellant, 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 appellant; or

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

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

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

(b) to communicate any answers given by the appellant, and any other matters that the appellant 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 this rule references to acting at a hearing include assisting the appellant to communicate with the appellant’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 29A Interpretation, translation for persons other than the appellant

(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 an appellant.

(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 an appellant) and who needs interpretation.

(7) In its application by virtue of paragraph (6), nothing in this rule is limited by anything in Chapter 7 of Part 11 (special measures directions).

Section 30 Record of proceedings

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

(2) The record of proceedings must include—

(a) a record of any application or notification made in accordance with Part 3;

(b) a record of any finding;

(c) a record of any punishment awarded;

(d) a record of any order made, and any direction or ruling given, by the judge advocate;

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

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

(g) a record of any decision on an application under rule 29(5);

(h) a record of any agreement under rule 29(5)(b) to do without a written translation of a document or part of a document; ...

(i) a record of any direction given under rule 29(6) ... ; and

(j) a record of any decision on an application under rule 29A(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 appellant.

(4) Where a direction under rule 45 (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 31 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 appeal proceedings, the conclusion of the appeal proceedings;

(b) in the case of preliminary proceedings where there are no further proceedings, the conclusion of the preliminary 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 45 (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 31 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 judge advocate.

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

Section 32 Termination of proceedings

(1) The judge advocate must terminate any proceedings with lay members if—

(a) a lay member dies or is otherwise unable to continue to attend the proceedings; or

(b) the number of lay members discharged under rule 37(4) (objections to lay members) exceeds the number of waiting members.

(2) The judge advocate may terminate any proceedings if he considers it in the interests of justice to do so.

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

(4) Where proceedings with lay members are terminated under this rule, the lay members shall be discharged.

(5) The termination of appeal proceedings under this rule shall not bar further appeal proceedings in relation to the same summary finding or punishment.

Section 33 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 of the Crown Court would be conducted in comparable circumstances; and

(b) if he is unable to determine how comparable proceedings of the Crown Court would be conducted in comparable circumstances, in such a way as appears to him to be in the interests of justice.

Section 34 Proceedings without lay members

(1) For proceedings to which this rule applies, there shall be no lay members.

(2) This rule applies to preliminary proceedings.

(3) This rule applies to ancillary proceedings.

(4) This rule applies to variation proceedings if a direction is given under rule 88E.

Section 35 Powers that may be exercised by a judge advocate

Any power of the court may be exercised by a judge advocate, except—

(a) the power to determine an appeal, other than in proceedings to which rule 20 applies; and

(b) the power to confirm or substitute a punishment awarded ; and

(c) the power to vary a punishment, otherwise than in proceedings to which rule 34 applies.

Section 36 Persons ineligible for membership in particular circumstances

(1) A person is ineligible for membership of the court for any appeal proceedings if, at any time since the date of the commission of the offence which is the subject of the finding against the appellant, he and the appellant were serving in the same unit.

(2) Subject to paragraphs (3A) and (3B), a person is ineligible for membership of the court for any proceedings if he was a member of the court or of the Court Martial for any previous proceedings to which any person to whom the proceedings relate was a party.

(3) For the purposes of paragraph (2) a person is not to be regarded as having been a member of the court for any previous proceedings if those proceedings were terminated under rule 32(1) by virtue of sub-paragraph (b) of that paragraph (successful objections exceeding the number of waiting members).

(3A) A person is ineligible for membership of the court for any variation proceedings if they were not a member of the court for the proceedings in which the punishment that falls to be varied was imposed.

(3B) A person is not ineligible for membership of the court for variation proceedings by virtue of having been a member of the court for—

(a) any appeal proceedings in which the offender was convicted of any offence for which the punishment that falls to be varied was imposed;

(b) the appeal proceedings in which the punishment was imposed.

(4) This rule does not apply to the judge advocate.

Section 37 Objections to lay members

(1) At the commencement of appeal proceedings, the names of the lay members and waiting members shall be read out.

(2) Any party to the proceedings may object to any lay member, on any reasonable ground.

(3) The judge advocate shall rule on any objection to a lay member before the lay member is sworn.

(4) If an objection to a lay member is upheld, the judge advocate shall discharge him.

(5) This rule applies to any proceedings with lay members, except variation proceedings.

Section 38 Waiting members

(1) When the court administration officer specifies the lay members for any proceedings to which rule 37 applies, he shall at the same time specify a person (referred to in these Rules as a “ waiting member ”) to take the place of any lay member who may be discharged under rule 37(4).

(2) Where a lay member is discharged under rule 37(4) the waiting member shall become a lay member.

(3) Where the court administration officer specifies a waiting member, he shall specify a second waiting member if a judge advocate so directs.

(4) A second waiting member may be specified at any time before the commencement of the proceedings.

(5) Where two waiting members have been specified and paragraph (2) applies, the reference in that paragraph to the waiting member is to the senior waiting member.

(6) Where—

(a) two waiting members have been specified, and

(b) two lay members are discharged under rule 37(4),

both the waiting members shall become lay members.

(7) Rule 37(2) to (4) applies in relation to a waiting member who becomes a lay member by virtue of this rule.

Section 39 Swearing of lay members

At the commencement of any proceedings to which rule 37 applies, an oath shall be administered—

(a) subject to that rule, to each of the lay members; and

(b) to any person in attendance for instruction.

Section 40 Judge advocate's power to direct lay members to withdraw

In any proceedings with lay members, the judge advocate may direct the lay members to withdraw while he hears submissions or gives a ruling on any question of law, practice or procedure.

Section 41 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 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 42 Service of advance information

(1) In the case of appeal proceedings, the Director must, as soon as is practicable serve advance information on—

(a) the court administration officer;

(b) the appellant; and

(c) the appellant's legal representative (if any).

(2) For an appeal against finding, “ advance information ” means—

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

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

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

(3) For an appeal against punishment, “ advance information ” means—

(a) a statement of the information that the Director proposes to present to the court in pursuance of rule 86(2); and

(b) the written record.

(4) Where, after the Director has served advance information on an appellant, he intends to adduce any evidence not included in the advance information, he must as soon as is practicable serve on the appellant 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.

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

(6) 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 appellant.

Section 43 Listing of proceedings

On receipt of the advance information, the court administration officer must—

(a) forward it to the Judge Advocate General and request him to–

(i) determine whether preliminary proceedings are necessary;

(ii) specify a judge advocate for proceedings in relation to the appeal; and

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

Section 44 Listing of further preliminary proceedings

(1) Where the Judge Advocate General has determined that preliminary proceedings are necessary, 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 an appellant; 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 an appellant.

(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 45 (preliminary proceedings in chambers without notice), must be served on every other party to the proposed appeal proceedings.

Section 45 Preliminary proceedings in chambers without notice to appellant

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 appellant, to be held in his absence and without notice to him;

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

Section 46 Outline of respondent's case

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