Joint Committee on Statutory Instruments Thirty-Second Report


APPENDIX 7

Memorandum by the Ministry of Defence

SUMMARY APPEAL COURT (NAVY) RULES 2000 (S.I. 2000/2370)

SUMMARY APPEAL COURT (ARMY) RULES 2000 (S.I. 2000/2371)

SUMMARY APPEAL COURT (AIR FORCE) RULES 2000 (S.I. 2000/2372)

1. This memorandum is in answer to the letter of 8 November 2000 from the Commons Clerk of the Joint Committee on Statutory Instruments. That letter records the request of the Committee for a memorandum on the following points:

    (1)  In each of the instruments, rule 10 provides for the procedures for determining an application under section 52FK(2) or (3) of the 1957 Act (section 83ZE(2) or (3) or each of the 1955 Acts). Given that the court's power to grant an application under section 52FK(2) or 83ZE(2) is exercisable only within 14 days of the date on which the punishment was awarded, explain how the rule, and in particular paragraphs (3) to (6), is intended to operate in relation to such an application.

    (2)  Rule 22(2) of S.I. 2000/2371 and S.I. 2000/2372 requires the court administration officer to consult the Judge Advocate General before specifying the time and place for a hearing. Explain why similar provision is not made in S.I. 2000/2370 with respect to the Chief Naval Judge Advocate.

    (3)  Rule 22(3)(a) of S.I. 2000/2371 and S.I. 2000/2372 requires a notice to include the relevant particulars of "the persons (other than the judge advocate) specified to sit as members of the court for the purposes of hearing the appeal". Explain why the words in brackets are not included in rule 22(2)(a) of S.I. 2000/2370.

    (4)  Given that section 52FH of the 1957 Act, and section 83ZC of each of the 1955 Acts, does not permit anyone other than a naval, military or air force officer to be appointed as a member of the summary appeal court, explain the persons to whom rule 22(4)(d) of S.I. 2000/2370 and rule 22(5)(d) of S.I. 2000/2371 and 2372 are intended to apply.

Point 1

2. As indicated by the Committee, rule 10 provides for the procedure for determining applications under section 52FK(2) or (3) of the 1957 Act (section 83ZE(2) or (3) of each of the 1955 Acts). Applications are determined without a hearing save where a hearing is requested by the applicant or where the judge advocate of his own motion decides to hold a hearing. The reason for inserting paragraphs 2(a), (3) and (4) was to ensure that an application could not be refused without the applicant having the opportunity to put his case at a hearing before the judge advocate. However, the intention was that the procedure outlined in those paragraphs should only apply to applications under section 52FK(3) of the 1957 Act (section 83ZE(3) of the 1955 Acts). The Department accepts that rule 10(3) is defective in not being so restricted.

3. The Department is grateful to the Committee for raising this point, and undertakes to make the necessary amendments to rule 10(3) at the earliest convenient opportunity. The Department does not expect rule 10(3) to raise any problems in practice prior to the amendments being made. We expect that it would only exceptionally be the case that an application under section 52FK(2) of the 1957 Act or advocate is minded to refuse an application, it will be open to him to direct a hearing under rule 10(2)(b). Such a hearing would not be subject to the 14 day period specified in rule 10(4).

Point 2

4. As noted by the Committee, Rule 22(2) of S.I. 2000/2372 requires the court administration officer to consult the Judge Advocate General before specifying the time and place for a hearing, whereas similar provision is not made in S.I. 2000/2370 with respect to the Chief Naval Judge Advocate. This difference in treatment reflects the provisions of the primary legislation under which these provisions are made. Thus, section 83JZ(2)(e) of the 1955 Acts expressly enables rules made under that section to make provision as to consultation by the court administration with the Judge Advocate General before specifying where the court is to sit. There is no such provision in section 52FP(2) of the 1957 Act. The reason for this difference in treatment relates to the different nature of the appointments made by the Judge Advocate General and the Chief Naval Judge Advocate. The Judge Advocate General appoints civilian lawyers to sit as judge advocates of the summary appeal court established under the 1955 Acts. Those appointed by the Judge Advocate General will very often have commitments in other service courts. This makes it difficult to plot the time of judge advocates, and consequently it may not be until shortly before the hearing that the identity of the judge advocate is known. Naval Judge Advocate, who is himself a uniformed officer, appoints naval barristers to sit as judge advocates of the naval summary appeal court. Because they are uniformed officers, there is far greater certainty of having a judge advocate available irrespective of where and when the court is required to sit.

Point 3

5. Rule 22(2)(a) of S.I. 2000/2370 requires the court administration officer to include in the notice under paragraph (1) of that rule the particulars of the judge advocate specified to hear the appeal in question. No such requirement appears in rule 22(3)(a) of S.I. 2000/2371 and S.I. 2000/2372. The reasons for this difference in treatment are similar to those referred to above in relation to Point 2. The nature of the appointments made by the Judge Advocate General means that it is unlikely to be possible to identify with certainty who is to sit as the judge advocate until shortly before the hearing of the appeal. The position is different under S.I. 2000/2370 because the Chief Naval Judge Advocate will have selected the officer who is to act as the judge advocate well in advance of the hearing.

Point 4

6. Rule 22(4)(d) of S.I. 2000/2370 and rule 22(5)(d) of S.I. 2000/2371 and S.I. 2000/2372 are drafted on the basis that a person in the service of the Crown other than a naval, military or air force officer may be appointed as a member of the summary appeal court. The reason for this is that civil servants may be appointed to sit as members of the summary appeal court where the appellant is himself a civilian. Paragraphs 17 and 18 of Schedule 3 to the Armed Forces Discipline Act 2000 amended respectively section 209(3) of the 1955 Acts and Schedule 4 to the 195 Act (as so amended) enable civilians in the services of the Crown to sit as members of the summary appeal court where the appellant is a civilian.

14 November 2000


 
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