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

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Judicial officers.     7. - (1) After section 75K of each of the 1955 Acts there is inserted-
 
 
"Judicial officers.     75L. - (1) Judicial officers shall be appointed for the purposes of this Act by the Judge Advocate General.
 
    (2) No person shall be appointed under this section unless-
 
 
    (a) he is qualified under section 84B(2) of this Act for appointment as the judge advocate in relation to a court-martial, or
 
    (b) he has, and has had for at least five years, in any Commonwealth country or any colony rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules."
      (2) After section 47L of the 1957 Act there is inserted-
 
 
"Judicial officers.     47M. - (1) Judicial officers shall be appointed for the purposes of this Act by the Chief Naval Judge Advocate.
 
    (2) No person shall be appointed under this section unless-
 
 
    (a) he is qualified under section 53B(2) of this Act for appointment as the judge advocate in relation to a court-martial, or
 
    (b) he has, and has had for at least five years, in any Commonwealth country or any colony rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules."
Custody rules.     8. - (1) After section 75L of each of the 1955 Acts there is inserted-
 
 
"Custody rules.     75M. - (1) The Secretary of State may make rules with respect to proceedings-
 
    (a) on an application under section 75C of this Act;
 
    (b) under section 75F(1) of this Act;
 
    (c) on a review under section 75G(1) of this Act.
      (2) Rules under this section may in particular make provision with respect to-
 
 
    (a) arrangements preliminary to the proceedings;
 
    (b) the representation of the person to whom the proceedings relate;
 
    (c) the admissibility of evidence;
 
    (d) procuring the attendance of witnesses;
 
    (e) the immunities and privileges of witnesses;
 
    (f) the administration of oaths;
 
    (g) circumstances in which a review under section 75G(1) of this Act may be carried out without a hearing;
 
    (h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 75C(2)(b), 75F(1) or 75K(7)(b) or (8)(b) of this Act for a person to be brought before a judicial officer or judge advocate;
 
    (i) the appointment of persons to discharge administrative functions under the rules.
      (3) Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."
 
      (2) After section 47M of the 1957 Act there is inserted-
 
 
"Custody rules.     47N. - (1) The Secretary of State may make rules with respect to proceedings-
 
    (a) on an application under section 47D of this Act;
 
    (b) under section 47G(1) of this Act;
 
    (c) on a review under section 47H(1) of this Act.
      (2) Rules under this section may in particular make provision with respect to-
 
 
    (a) arrangements preliminary to the proceedings;
 
    (b) the representation of the person to whom the proceedings relate;
 
    (c) the admissibility of evidence;
 
    (d) procuring the attendance of witnesses;
 
    (e) the immunities and privileges of witnesses;
 
    (f) the administration of oaths;
 
    (g) circumstances in which a review under section 47H(1) of this Act may be carried out without a hearing;
 
    (h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 47D(2)(b), 47G(1) or 47L(7)(b) or (8)(b) of this Act for a person to be brought before a judicial officer or judge advocate;
 
    (i) the appointment of persons to discharge administrative functions under the rules.
      (3) Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."
 
Bail in proceedings for illegal absence.     9. - (1) In section 187 of the Army Act 1955 (civil court proceedings for illegal absence from army)-
 
 
    (a) in subsection (2) for the words from "commit" to the end, and
 
    (b) in subsection (3) for "commit him as aforesaid",
  there is substituted ", where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into military custody."
 
      (2) In section 187 of the Air Force Act 1955 (civil court proceedings for illegal absence from air force)-
 
 
    (a) in subsection (2) for the words from "commit" to the end, and
 
    (b) in subsection (3) for "commit him as aforesaid",
  there is substituted ", where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into air-force custody."
 
      (3) In section 109 of the 1957 Act (civil court proceedings for illegal absence from navy)-
 
 
    (a) for subsection (1)(b) there is substituted-
 
    "(b) where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into naval custody.",
 
    (b) subsection (2) is omitted, and
 
    (c) in subsection (3)(a) for "commit him as provided by subsection (1) of this section" there is substituted ", where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into naval custody".
      (4) In Schedule 2 to the Reserve Forces Act 1996 (deserters and absentees without leave from reserve fores)-
 
 
    (a) for paragraph 4(2)(b) there is substituted-
 
    "(b) where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into such custody.", and
 
    (b) in paragraph 5(3) for "commit him as mentioned in paragraph 4(2)(b)" there is substituted ", where it is unable to do so, adjourn the proceedings and remand him for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into such custody".
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."
 
 
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