Armed Forces Discipline Bill [H.L.] - continued        House of Lords

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Further amendments relating to custody.     10. Schedule 1 to this Act (which makes further amendments of the 1955 Acts and the 1957 Act in relation to custody) shall have effect.
 
 
Election for court-martial trial
Right to elect court-martial trial.     11. - (1) After section 76A of the Army Act 1955 there is inserted-
 
 
"Right to elect for court-martial trial.     76AA. - (1) Before dealing summarily with a charge, the commanding officer or appropriate superior authority shall afford the accused the opportunity of electing court-martial trial in relation to that charge.
 
    (2) Where in accordance with regulations under section 83 of this Act two or more charges are together to be dealt with summarily, any election for court-martial trial must relate to all the charges concerned.
 
      (3) If the accused elects court-martial trial and does not withdraw his election with leave, the commanding officer or appropriate superior authority shall refer to higher authority the charge to which the election relates, with a view to the trial of the accused by court-martial.
 
      (4) If a charge has been referred to higher authority as a result of an election for court-martial trial and that election is withdrawn with leave, the higher authority shall-
 
 
    (a) if the accused is an officer or warrant officer, refer the charge back to the appropriate superior authority;
 
    (b) if the accused is a non-commissioned officer or soldier, refer the charge back to the commanding officer of the accused,
  for the appropriate superior authority or commanding officer to deal summarily with the charge.
 
      (5) Subsection (1) above does not enable the accused to make a further election for court-martial trial in relation to a charge which has been referred back to the appropriate superior authority or commanding officer under subsection (4) above.
 
      (6) Where under section 76B(3) of this Act a charge is amended or one charge is substituted for another, subsection (1) above applies in relation to the amended or substituted charge."
 
      (2) After section 76A of the Air Force Act 1955 there is inserted-
 
 
"Right to elect for court-martial trial.     76AA. - (1) Before dealing summarily with a charge, the commanding officer or appropriate superior authority shall afford the accused the opportunity of electing court-martial trial in relation to that charge.
 
    (2) Where in accordance with regulations under section 83 of this Act two or more charges are together to be dealt with summarily, any election for court-martial trial must relate to all the charges concerned.
 
      (3) If the accused elects court-martial trial and does not withdraw his election with leave, the commanding officer or appropriate superior authority shall refer to higher authority the charge or charges to which the election relates, with a view to the trial of the accused by court-martial.
 
      (4) If a charge has been referred to higher authority as a result of an election for court-martial trial and that election is withdrawn with leave, the higher authority shall-
 
 
    (a) if the accused is an officer or warrant officer, refer the charge back to the appropriate superior authority;
 
    (b) if the accused is a non-commissioned officer or airman, refer the charge back to the commanding officer of the accused,
  for the appropriate superior authority or commanding officer to deal summarily with the charge.
 
      (5) Subsection (1) above does not enable the accused to make a further election for court-martial trial in relation to a charge which has been referred back to the appropriate superior authority or commanding officer under subsection (4) above.
 
      (6) Where under section 76B(3) of this Act a charge is amended or one charge is substituted for another, subsection (1) above applies in relation to the amended or substituted charge."
 
      (3) In section 76B of each of the 1955 Acts (summary dealings)-
 
 
    (a) subsections (5), (6) and (8) are omitted,
 
    (b) in subsection (7), for the words from the beginning to "authority" there is substituted "If the commanding officer or appropriate superior authority determines that the charge has been proved, he", and
 
    (c) in subsection (10), after "76A" there is inserted "or 76AA".
      (4) In section 52D of the 1957 Act (summary trial), after subsection (2) there is inserted-
 
 
    "(2A) Where in accordance with regulations under section 52F of this Act two or more charges are together to be tried summarily, any election for court-martial trial must relate to all the charges concerned."
 
      (5) In subsection (3) of that section for "so elects" there is substituted "elects court-martial trial".
 
Limit on powers of courts-martial where accused elected court-martial trial.     12. - (1) After section 85 of each of the 1955 Acts there is inserted-
 
 
"Powers of court-martial where accused elected court-martial trial.     85A. - (1) Where a court-martial tries a person in pursuance of an election for court-martial trial, the court shall not award any punishment which could not have been awarded by the commanding officer or appropriate superior authority who would have dealt summarily with the preliminary charge if the election had not been made.
 
    (2) In subsection (1) above "the preliminary charge" means the charge which would have been dealt with summarily had the accused not elected court-martial trial.
 
      (3) For the purposes of this section a court-martial is not to be regarded as trying a person in pursuance of an election for court-martial trial if, since the election was made, the prosecuting authority has referred the charge back to the commanding officer under section 83BB of this Act."
 
      (2) In section 85(1) of each of the 1955 Acts (powers of general courts-martial) for "and to award" there is substituted "and, subject to section 85A below, to award".
 
      (3) After section 62 of the 1957 Act there is inserted-
 
 
"Powers of court-martial where accused elected court-martial trial.     62ZA. - (1) Where a court-martial tries a person in pursuance of an election for court-martial trial, the court shall not award any punishment which could not have been awarded by the officer who would have tried the preliminary charge summarily if the election had not been made.
 
    (2) In subsection (1) above, "the preliminary charge" means the charge which would have been tried summarily had the accused not elected court-martial trial.
 
      (3) Where regulations under section 52F of this Act would have prevented a punishment of a particular description awarded by the officer from taking effect without the approval of another person, it shall be assumed for the purposes of subsection (1) above that the approval would have been obtained.
 
      (4) For the purposes of this section a court-martial is not to be regarded as trying a person in pursuance of an election for court-martial trial if, since the election was made, the prosecuting authority has referred the charge back to the commanding officer under section 52II of this Act."
 
 
Functions of prosecuting authority
Functions of prosecuting authority.     13. Schedule 2 to this Act (which makes amendments of the 1955 Acts and the 1957 Act relating to the functions of the prosecuting authority) shall have effect.
 
 
Summary appeal courts
Summary appeal courts.     14. - (1) After section 83 of each of the 1955 Acts there is inserted-
 
 

"The summary appeal court
The summary appeal court.     83ZA. - (1) There shall be a court (in this Act referred to as "the summary appeal court") for the purpose of hearing appeals against findings recorded and punishments awarded by commanding officers and appropriate superior authorities on dealing summarily with charges.
 
      (2) The court shall consist of-
 
 
    (a) judge advocates appointed under section 83ZB of this Act, and
 
    (b) officers qualified under section 83ZC of this Act to be members of the court.
      (3) The court-
 
 
    (a) may sit in two or more divisions, and
 
    (b) may sit in any place, whether within or outside the United Kingdom.
      (4) There shall be a court administration officer for the court, who shall be an officer (or other person) appointed by the Defence Council.
 
      (5) The court shall sit at such times and in such places as may be determined by the court administration officer.
 
      (6) The court administration officer shall perform such other functions as may be prescribed by rules under section 83ZJ of this Act."
 
      (2) After section 52F of the 1957 Act there is inserted-
 
 

"The summary appeal court
The summary appeal court.     52FF. - (1) There shall be a court (in this Act referred to as "the summary appeal court") for the purpose of hearing appeals against findings recorded and punishments awarded on summary trial.
 
      (2) The court shall consist of-
 
 
    (a) judge advocates appointed under section 52FG of this Act, and
 
    (b) officers qualified under section 52FH of this Act to be members of the court.
      (3) The court-
 
 
    (a) may sit in two or more divisions, and
 
    (b) may sit in any place, whether within or outside the United Kingdom.
      (4) There shall be a court administration officer for the court, who shall be an officer (or other person) appointed by the Defence Council.
 
      (5) The court shall sit at such times and in such places as may be determined by the court administration officer.
 
      (6) The court administration officer shall perform such other functions as may be prescribed by rules under section 52FP of this Act."
 
 
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Prepared 19 November 1999