The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

CHAPTER 1Trial by Court Martial

Pre-commencement selection of members of Court Martial

74.—(1) If before commencement a person is specified by or on behalf of the Judge Advocate General to be the judge advocate for Court Martial proceedings intended to take place after commencement, the specification has effect after commencement as a specification under section 155(5) of AFA 2006.

(2) If before commencement a person is specified by or on behalf of a court administration officer to be a lay member of the court for Court Martial proceedings intended to take place after commencement, the specification has effect after commencement as a specification under section 155(6) of AFA 2006.

(3) If before commencement a judicial officer directs that the number of lay members of the court for Court Martial proceedings intended to take place after commencement must be more than the minimum required, the direction has effect after commencement as a direction under section 155(7) of AFA 2006.

(4) In this article—

“court administration officer” means a court administration officer within the meaning of section 84A of AA 1955 or AFA 1955 or section 53A of NDA 1957;

“judicial officer” means a judicial officer appointed under section 75L of AA 1955 or AFA 1955 or section 47M of NDA 1957;

“the minimum required” has the meaning given by section 155(8) of AFA 2006.

Eligibility to be member of the court

75.  In section 157(1) of AFA 2006 (officers and warrant officers ineligible for membership of Court Martial in particular circumstances)—

(a)in paragraph (a), “commanding officer”, in relation to times before commencement, means commanding officer within the meaning of Part 2 of AFA 2001;

(b)in paragraph (c), the reference to an inquiry includes—

(i)an investigation conducted by a board of inquiry under section 135 of AA 1955 or AFA 1955;

(ii)an inquiry held under section 137 of AA 1955 or AFA 1955;

(iii)an inquiry held by the Royal Navy under the prerogative.

Arraignment before commencement

76.  Court Martial rules may provide that a plea offered on arraignment at a hearing under section 91A of AA 1955 or AFA 1955 or section 58A of NDA 1957 is to be treated, for such purposes as may be specified, as having been offered on arraignment before the Court Martial.

Power to convict of alternative offences

77.—(1) This article applies in relation to a trial by the Court Martial, and is without prejudice to section 161 of AFA 2006.

(2) Where the Court Martial acquits a person of an SDA offence specifically charged in the charge sheet, but the allegations in the charge sheet amount to or include (expressly or by implication) an allegation of—

(a)another SDA offence, or

(b)a service offence,

the court may convict the person of that other SDA offence or that service offence.

(3) Where the Court Martial acquits a person of a service offence specifically charged in the charge sheet, but the allegations in the charge sheet amount to or include (expressly or by implication) an allegation of an SDA offence, the court may convict him of the SDA offence.

(4) For the purposes of this article—

(a)an allegation of an offence under any of sections 24 to 66 or 69 of AA 1955 or AFA 1955 (“offence X”) is to be taken to include an allegation of an offence under section 68 of attempting to commit offence X;

(b)an allegation of an offence under any of sections 2 to 39 of NDA 1957 (“offence Y”) is to be taken to include an allegation of an offence under section 40 of attempting to commit offence Y;

(c)an allegation of a completed SDA civil offence is to be taken to include an allegation of an SDA civil offence of attempting to commit that offence.

(5) Paragraphs (2) and (3) apply in relation to a charge sheet containing more than one charge as if each charge were contained in a separate charge sheet.

(6) In this article a “completed SDA civil offence” means an offence that would be an offence to which section 1 of the Criminal Attempts Act 1981(1) applies if subsection (4) of that section had effect as modified by section 70(2A) of AA 1955 or AFA 1955 or section 42(2A) of NDA 1957.

Sentencing powers where election for Court Martial trial

78.—(1) An offence of which a person has been convicted or acquitted by the Court Martial is “relevant” for the purposes of section 165 of AFA 2006 (sentencing powers where election for Court Martial trial) if the person was tried for the offence in pursuance of an election for court-martial trial.

(2) In section 165(1)(c) of AFA 2006, the reference to Court Martial trial includes court-martial trial.

(3) Section 165(5) of AFA 2006 has effect as if the cases mentioned in paragraphs (a) and (b) included the following cases—

(a)where the court convicts a person of an offence that is relevant by virtue of this article;

(b)where the court convicts a person of two or more such relevant offences the charges in respect of which—

(i)would have been dealt with or tried summarily together if no election for court-martial trial had been made; or

(ii)are under Court Martial rules to be treated as if they would have been so dealt with or tried.

Appeals against pre-commencement orders restricting publicity etc

79.  In section 163(9) of AFA 2006 (rules relating to certain appeals)—

(a)the reference to rules made by virtue of section 163(3)(i) includes any Court Martial rules that make provision, corresponding to that mentioned in section 163(3)(i), in relation to orders and directions of courts-martial or orders or rulings made in proceedings preliminary to a court-martial trial; and

(b)the reference to appeals made by virtue of section 163(3)(i) includes appeals made under such rules.