The Armed Forces (Court Martial) Rules 2009

• Citation: S.I. 2009/2041
• Sections: 226

Section 1 Citation and commencement

These Rules may be cited as the Armed Forces (Court Martial) 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) trial proceedings,

(c) sentencing proceedings,

(d) variation proceedings,

(e) appellate proceedings,

(f) activation proceedings, ...

(g) ancillary proceedings and

(h) review of sentence proceedings,

but 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 13(1)(a) or (b) of Schedule 16 to the Sentencing Code (activation of suspended sentence of imprisonment);

an order under section 191(3) (activation of suspended sentence of service detention); 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—

a hearing under rule 127 of an application under section 285(4) for leave to appeal out of time from the Service Civilian Court; and

proceedings under any provision of Part 18;

“ appellate proceedings ” means proceedings of the court (other than sentencing proceedings) on appeal from the Service Civilian Court;

“ community order proceedings ” means any proceedings under Chapter 1 of Part 18;

“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 arraigning a defendant on a charge or giving directions, orders or rulings for the purpose of 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;

“ review of sentence proceedings ” means proceedings before the court under section 304D (review of sentence following offer of assistance) or section 304E (review of sentence following failure to assist);

“ sentencing proceedings ” means proceedings for the sentencing of—

a person convicted by the court on a plea of guilty or in trial or appellate proceedings, or

a person convicted by the Service Civilian Court who appeals against sentence,

and does not include variation proceedings;

“ trial proceedings ” means proceedings for the trial of a charge by the court (including proceedings authorised by an order of the Appeal Court under section 19 of the 1968 Act), and does not include sentencing proceedings;

“ variation proceedings ” means proceedings under Part 15.

(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;

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

(d) in the case of appellate proceedings, an appellant;

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

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

(g) in the case of a hearing of an application under section 232(1) for the variation or revocation of a service restraining order, the person in respect of whom the service restraining order was made;

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

(i) in the case of proceedings under section 229 (service restraining orders) in respect of a case remitted to the court by the Appeal Court under section 230(3), the person whose appeal was allowed; ...

(j) in the case of a hearing under rule 151 (certification of contempt of court), the person whose offence the court is to consider certifying ; and

(k) in the case of review of sentence proceedings, the person on whom the court has passed a sentence.

(5) In these Rules—

“ the Director ” means the Director of Service Prosecutions;

“ defendant ” means a person against whom a charge allocated for Court Martial trial has been brought.

Section 3 Interpretation: general

(1) Any reference in these Rules to a numbered section is to that section of the 2006 Act unless otherwise stated.

(2) In these Rules—

“ the 2006 Act ” means the Armed Forces Act 2006;

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

“ the 1968 Act ” means the Court Martial Appeals Act 1968;

“ 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 43(2);

“ allocated for Court Martial trial ” means regarded for the purposes of Part 5 of the 2006 Act as allocated for Court Martial trial;

“ the Appeal Court ” means the Court Martial Appeal Court;

“ 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 Court Martial;

“ 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 155(5);

“ the lay members ” has the same meaning as in section 155;

“ legal representative ” means a person appointed under rule 39;

“live link”, except in Part 15, has the meaning given by rule 18(3)(a);

...

“ the original sentence ”, in relation to activation proceedings, has the same meaning as in Part 17;

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

“ the president of the board ” means the lay member (if any) who by virtue of rule 34 is the president of the board;

“ proceedings with lay members ” means any proceedings other than those listed in rule 27;

“ qualified to be the president of the board ” has the meaning given by rule 34(3);

“ suspended sentence order ” means an order under section 264 or 277 of the Sentencing Code or section 189(1) of the 2003 Act (suspended sentence of imprisonment) made by a relevant service court, as defined by section 207 of the 2006 Act;

“ 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 10 to the Sentencing Code is to that Schedule as modified by section 181 of the 2006 Act and Schedule 6A to that 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, 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) 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;

(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 39(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 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 16 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) Where an offender has been convicted in trial or appellate proceedings, the sentencing proceedings in respect of him shall commence immediately after the conclusion of the trial or appellate 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 the judge advocate may direct.

Section 17 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 , if any, 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.

(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 36.

(3) In paragraph (2), “ relevant particulars ” means—

(a) in relation to a person subject to service law, his rank or rate and his unit;

(b) in relation to any other person, any position held by him in the service of the Crown and any unit to which he is attached.

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 (except Part 15)—

(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 49(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 leave 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 judge advocate 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 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) sentence,

(aa) review of sentence under section 304D or 304E,

(b) an issue of fact being tried under rule 112,

(c) whether to make an activation order, or

(d) 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 21 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 22 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 22A Interpretation and 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 person who attends a hearing as a witness (other than a person to whom any proceedings relate) and who needs interpretation.

Section 23 Record of proceedings

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

(2) The record of proceedings must include—

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

(b) a record of any finding;

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

(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 22(5);

(h) a record of any agreement under rule 22(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 22(6) ; and

(j) a record of any decision on an application under rule 22A(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 47 (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 24 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 or appellate 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 or appellate proceedings take place but no defendant or appellant is convicted, the conclusion of the trial or appellate proceedings;

(ba) in the case of review of sentence proceedings, the conclusion of the review of sentence 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 47 (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 24 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 25 Termination of proceedings

(1) The judge advocate must terminate any proceedings to which rule 34 (president of the board) applies if—

(a) the president of the board dies or is otherwise unable to continue to attend the proceedings; and

(b) there is no other lay member of the court who is qualified to be the president of the board.

(2) 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 35(4) (objections to lay members) exceeds the number of waiting members,

and the number of lay members is in consequence reduced below the minimum number required for the Court Martial to remain validly constituted .

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

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

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

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

(7) The termination of sentencing proceedings under this rule or rule 59(4) (change of plea) shall not bar further sentencing proceedings in relation to the same offence or offences.

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

Section 26 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 27 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 sentencing proceedings where every offender who falls to be sentenced is either—

(a) a civilian offender for the purposes of Part 1 of Schedule 3 to the 2006 Act; or

(b) an offender to whom Part 2 of that Schedule (ex-servicemen etc) applies, and who was convicted of every offence for which he falls to be sentenced either—

(i) in trial proceedings for which no lay member was subject to service law; or

(ii) on a guilty plea, where the court administration officer had previously notified him in writing that, if trial proceedings were required, none of the lay members would be subject to service law.

(4) This rule applies to variation proceedings if—

(a) it applied to the proceedings in which the sentence that falls to be varied was imposed; or

(b) a direction is given under rule 120.

(5) This rule applies to activation proceedings if—

(a) the original sentence was imposed by the court, and this rule applied to the proceedings in which it was imposed; or

(b) the original sentence was imposed by the Service Civilian Court.

(6) This rule applies to ancillary proceedings.

(7) This rule applies to review of sentence proceedings if it applied to the proceedings in which the sentence that falls to be reviewed was imposed.

Section 28 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 try a defendant or appellant; and

(b) the power—

(i) to sentence an offender,

(ii) to vary a sentence, ...

(iii) to make an activation order, or

(iv) to review the sentence of an offender under section 304D or 304E,

otherwise than in proceedings to which rule 27 applies.

Section 29 Proceedings requiring six lay members

(1) For proceedings to which this rule applies, the number of lay members shall be six .

(2) This rule applies to trial proceedings if—

(a) any defendant is charged with an offence listed in Schedule 2 to the 2006 Act;

(b) any defendant is aged 18 or over at the commencement of the proceedings and is charged with an offence for which he could, if convicted, be sentenced to more than two years' imprisonment; or

(c) any defendant is aged under 18 at the commencement of the proceedings and is charged with an offence for which he could, if convicted while under the age of 18, be sentenced to more than two years' detention under section 209.

(3) Subject to rule 29A, this rule applies to sentencing proceedings if any offender falls to be sentenced for—

(a) an offence listed in Schedule 2 to the 2006 Act; or

(b) an offence for which he could be sentenced to more than two years' imprisonment or more than two years' detention under section 209.

(4) Subject to rule 29A, this rule applies to variation proceedings if it applied to the proceedings in which the sentence that falls to be varied was imposed.

(5) Subject to rule 29A, this rule applies to review of sentence proceedings if it applied to the proceedings in which the sentence that falls to be reviewed was imposed.

Section 29A Disapplication of rule 29

Rule 29 does not apply to—

(a) sentencing proceedings where the sole defendant has entered a guilty plea before the commencement of trial proceedings;

(b) sentencing proceedings where there are two or more co-defendants, and each co-defendant has entered a guilty plea before the commencement of trial proceedings; ...

(c) variation proceedings where paragraph (a) or (b) applied to the sentencing proceedings in which the sentence which falls to be varied was imposed ; and

(d) review of sentence proceedings where paragraph (a) or (b) applied to the sentencing proceedings in which the sentence which falls to be reviewed was imposed.

Section 30 Proceedings with four lay members

(1) A judge advocate may only give a direction under section 155(2A) if the judge advocate considers it necessary to do so, having regard to the expected length and location of the proceedings.

(2) A direction may not be given under section 155(2A) after the commencement of the proceedings unless—

(a) a direction under section 155(2A) was in effect when the proceedings commenced;

(b) one or more lay members has been discharged under rule 35(4) (objections); and

(c) there are three or fewer lay members remaining (including any waiting members).

(3) A judge advocate may rescind a direction under section 155(2A) at any time before the commencement of the proceedings to which it relates.

Section 30A Reduction in lay members

A judge advocate may direct that the Court Martial is to remain validly constituted despite the reduction of lay members from six to five, or where a direction has been made under section 155(2A), from four to three if—

(a) the number of lay members reduces in the course of the proceedings after each of the lay members has been sworn; and

(b) the judge advocate considers it in the interests of justice that the proceedings continue.

Section 31 Warrant officers and OR-7s

(1) For any proceedings with lay members where every person to whom the proceedings relate is of or below the rank or rate of warrant officer, the number prescribed for the purposes of section 155(3) (that is to say, the number of lay members who may be warrant officers or OR-7 ranks rather than officers) is —

(a) one, if there are three or four lay members; or

(b) two, if there are five or six lay members.

(1A) The number prescribed by paragraph (1) may consist of, or include no more than, one OR-7 rank if every person to whom the proceedings relate is of or below that rank or rate.

(2) For any proceedings with lay members where any person to whom the proceedings relate is an officer subject to service law, every lay member must be an officer qualified for membership under section 156 and not ineligible by virtue of section 157 or rule 32; and section 155(3) shall not apply in relation to any such proceedings.

Section 32 Persons ineligible for membership in particular circumstances

(1) A person is ineligible for membership of the court for any trial proceedings if, at any time since the date of the commission of any offence charged, he and any defendant were serving in the same unit.

(2) A person is ineligible for membership of the court for any sentencing proceedings if, at any time since the date of the commission of any offence for which an offender falls to be sentenced, he and the offender were serving in the same unit.

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

(4) A person is ineligible for membership of the court for any appellate proceedings if at any time since the date of the commission of any offence to which the proceedings relate he and any appellant were serving in the same unit.

(4A) A person is ineligible for membership of the court for any review of sentence proceedings if, at any time since the date of the commission of any offence for which the sentence that falls to be reviewed was imposed, that person and the offender were serving in the same unit.

(5) A person is ineligible for membership of the court for any activation proceedings if at any time since the date of the commission of the offence for which the original sentence was passed he and the offender were serving in the same unit.

(6) A person is ineligible for membership of the court for any proceedings if he was a member of the court for any previous proceedings to which any person to whom the proceedings relate was a party; but this is subject to paragraphs (7) to (9).

(7) A person is not ineligible for membership of the court for sentencing proceedings by virtue of having been a member of the court for any trial or appellate proceedings in which any offender was convicted of any offence for which he falls to be sentenced.

(8) 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 trial or appellate proceedings in which the offender was convicted of any offence for which the sentence that falls to be varied was imposed; or

(b) the proceedings in which that sentence was imposed.

(8A) A person is not ineligible for membership of the court for review of sentence proceedings by virtue of having been a member of the court for—

(a) any trial or appellate proceedings in which the offender was convicted of any offence for which the sentence that falls to be reviewed was imposed;

(b) any proceedings in which the sentence that falls to be reviewed was imposed or varied.

(9) For the purposes of paragraph (6) 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 25(2) by virtue of sub-paragraph (b) of that paragraph (successful objections exceeding the number of waiting members).

(10) In relation to a person who at any time was not subject to service law, references in this rule to a unit in which the person was at that time serving are to be read as references to a unit to which he was at that time attached.

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

Section 33 Civilians

(1) For proceedings to which this rule applies, each of the lay members must be either—

(a) a person not subject to service law who is qualified for membership under paragraph (2) and not ineligible by virtue of rule 32; or

(b) an officer or warrant officer who would be qualified for membership under section 156, and not ineligible by virtue of section 157 or rule 32, if this rule did not apply;

and section 155(3) shall not apply in relation to the proceedings.

(2) For proceedings to which this rule applies, a person not subject to service law is qualified for membership of the court unless—

(a) he is aged under 18, or has reached the age of 70, at the commencement of the proceedings;

(b) he is not a United Kingdom national;

(c) he is a mentally disordered person;

(d) he is disqualified for jury service;

(e) he is a member of the Military Court Service; or

(f) he is on the staff of the Service Prosecuting Authority.

(3) In paragraph (2), “ United Kingdom national ” has the same meaning as in paragraph 11 of Schedule 15 to the 2006 Act.

(4) For the purposes of paragraph (2)—

(a) a person is a mentally disordered person if he is one of those listed in Part 1 of Schedule 1 to the Juries Act 1974 ; and

(b) a person is disqualified for jury service if he is one of those listed in Part 2 of that Schedule.

(5) This rule applies to—

(a) trial proceedings, if any defendant is not subject to service law at the commencement of the proceedings;

(b) sentencing proceedings with lay members, if any offender who falls to be sentenced was not subject to service law when convicted;

(c) variation proceedings with lay members, if this rule applied to the sentencing proceedings in which the sentence that falls to be varied was imposed;

(d) appellate proceedings; ...

(e) activation proceedings with lay members, if the offender is not subject to service law at the commencement of the proceedings ; and

(f) review of sentence proceedings with lay members if this rule applied to the sentencing proceedings in which the sentence that falls to be reviewed was imposed.

(6) Where this rule applies to any proceedings and any person to whom the proceedings relate is an officer not subject to service law, paragraph (1) has effect as if the words “or warrant officer” in sub-paragraph (b) were omitted.

Section 34 The president of the board

(1) For proceedings to which this rule applies, at least one lay member must be an officer who is qualified to be the president of the board.

(2) This rule applies to any proceedings with lay members, except proceedings for which (by virtue of rule 33) no lay member is subject to service law.

(3) An officer (“ A ”) is qualified to be the president of the board if—

(a) A is of or above the rank of lieutenant commander, major or squadron leader;

(b) A is subject to service law; and

(c) where any person to whom the proceedings relate (“ B ”) is subject to service law, A satisfies the requirements set out in paragraphs (4) and (4A).

(4) Where B is of rank OF-6 or above, A must be of rank OF-6 or above.

(4A) Where B is of rank OF-5 or below, A must be of superior rank to B.

(5) In paragraphs (3) and (4), “ rank ” means substantive rank.

(5A) In this rule—

“ OF-5 ” means any of the following—

captain, Royal Navy;

colonel;

group captain;

“ OF-6 ” means any of the following—

commodore;

brigadier;

air commodore.

(6) Where one lay member is qualified to be the president of the board, he shall be the president of the board.

(7) Where two or more lay members are so qualified, the most senior of them shall be the president of the board.

(8) Paragraph (9) applies where—

(a) the president of the board is discharged under rule 35(4) (objections);

(b) the proceedings are not terminated under rule 25(2) (lay members reduced below minimum number);

(c) no other lay member is qualified to be the president of the board; and

(d) no waiting member is so qualified.

(9) Where this paragraph applies—

(a) the proceedings shall be adjourned;

(b) the court administration officer shall specify as a lay member another officer who is qualified to be the president of the board;

(c) that officer shall be the president of the board; and

(d) rule 35 (objections) shall apply on the resumption of the proceedings as it applies on the commencement of the proceedings.

(10) Notwithstanding anything in this rule, in any proceedings with lay members the judge advocate shall preside over the court.

Section 34A Gender representation on boards

(1) When the court administration officer specifies the lay members for any proceedings the court administration officer must ensure, so far as is reasonably practicable, that—

(a) at least one lay member is a woman; and

(b) at least one lay member is a man.

(2) This rule does not apply if the court administration officer is specifying lay members for proceedings for which (by virtue of rule 33) no lay member is subject to service law.

Section 35 Objections to lay members

(1) At the commencement of any proceedings to which this rule applies, 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—

(a) sentencing proceedings, where every offender who falls to be sentenced was convicted in trial or appellate proceedings of at least one offence for which he falls to be sentenced; ...

(b) variation proceedings ; and

(c) review of sentence proceedings.

Section 36 Waiting members

(1) When the court administration officer specifies the lay members for any proceedings to which rule 35 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 35(4).

(2) Where a lay member is discharged under rule 35(4), and rule 34(9) (no member qualified to be president of the board) does not apply, 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,

(b) two lay members are discharged under rule 35(4), and

(c) rule 34(9) does not apply,

both the waiting members shall become lay members.

(7) Rule 35(2) to (4) (objections) apply in relation to a waiting member who becomes a lay member by virtue of this rule.

Section 37 Swearing of lay members

At the commencement of any proceedings to which rule 35 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 38 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 39 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 40 Parent or guardian of young civilian

(1) This rule applies where a person to whom proceedings relate (“the young person”)—

(a) is under the age of 18 years at the commencement of the proceedings; and

(b) is not subject to service law.

(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 judge advocate may give leave for his parent or guardian to represent him in any proceedings.

Section 41 Arrest by service police etc before arraignment

Where—

(a) a charge is allocated for Court Martial 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 42 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 41), 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 43 Service of advance information

(1) Where a charge is allocated for Court Martial 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 judge advocate.

(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.