Rules of Procedure (Defence forces) 2008
Statutory Instruments
Source: Statutory Instruments

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paragraphs: (1) These Rules may be cited as the Rules of Procedure (Defence Forces) 2008.
(2) These Rules shall come into force on 1 September 2008.
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paragraphs: (1) In these Rules, the following expressions have the following meanings—
(a) any statement in writing, prepared in accordance with these Rules of Procedure, of the evidence of witnesses proposed to be called at the trial by court-martial of an accused person, or
(b) where the context so admits or requires, any statement or record of evidence of a witness, (including that, if any, of the person charged) given or prepared to be given, or heard, at an investigation of a charge before a commanding officer (pursuant to sections 177, 177A or 178C), or an authorised officer (pursuant to section 177C), or an officer appointed for that purpose by the Deputy Chief of Staff (Support) (pursuant to section 177), as the case may be;
(2) In these Rules, unless otherwise provided, a reference to a section is to a section of the Act.
(3) The words and expressions defined in section 2(1) of the Act have the same meaning in these Rules as in the Act.
(4) Time for the purpose of any proceedings or other matter under these Rules shall be reckoned exclusive of Sunday, Good Friday, Christmas Day and St. Patrick’s Day. Time reckoned for the purposes of arrest, custody, punishment or forfeiture or deduction of pay shall include those days.
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paragraphs: The form of oath to be taken or solemn declaration to be made by a military judge before entering upon his or her duties under the Act shall be as follows:
“I, , swear by Almighty God (or — do solemnly and sincerely promise and declare — as the case may be) that I will duly and faithfully and to the best of my knowledge and power execute the office of military judge in accordance with the Defence Act 1954 , the Court-Martial Rules and the Rules of Procedure made thereunder without partiality, fear or favour, affection or ill-will towards any person, and that I will uphold the Constitution and the laws.”.
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paragraphs: (1) The Chief Military Judge shall assign military judges to preside at courts-martial and shall perform the judicial duties conferred on him or her and on a military judge under the Act.
(2) In addition to his or her judicial duties, the Chief Military Judge may perform any other functions and duties as he or she may agree to undertake, provided that any such other functions and duties are not incompatible with the Act or with his or her judicial duties under these Rules.
(3) Military judges shall preside at courts-martial and shall perform other judicial duties under the Act, these Rules and any court-martial rules for the time being in force that are required to be performed by military judges.
(4) In addition to such duties, a military judge shall perform any other duties that the Chief Military Judge may direct, provided that any such other duties are not incompatible with the Act or with his or her judicial duties under these Rules.
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paragraphs: The Director shall, promptly upon the receipt of any notice of appeal to the summary court-martial, appoint a prosecutor for the purpose of the appeal.
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paragraphs: Whenever a determination made and/or a punishment awarded summarily pursuant to section 177C or 178C is appealed to the summary court-martial, the authorised officer or, as the case may be, the commanding officer, who has disposed of the charge summarily shall promptly forward to the prosecutor the documents referred to in Rule 12 of the Court-Martial Rules 2008.
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paragraphs: (1) The Court-Martial Administrator shall consult with the Chief Military Judge or the military judge presiding at the summary court-martial for the purpose of settling the dates, times and place on and at which the hearing of appeals, applications or other hearings or matters before the summary court-martial shall be listed.
(2) The Court-Martial Administrator shall give notice in writing, in Form 1 or endorsed on any notice submitted to him, of the date and time which has been fixed for the hearing of any appeal or application to the summary court-martial, and the place where the court is to sit, to:—
(a) the appellant or applicant, and such person’s commanding officer and (where relevant) the authorised officer;
(b) the Director; and
(c) the Chief Military Judge or the military judge presiding at the summary court-martial.
(3) If, having notified a person in accordance with sub-rule (2), the Court-Martial Administrator changes the time or place for the hearing of any appeal or application to the summary court-martial he or she shall notify the persons referred to in sub-rule (2) of such change.
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paragraphs: (1) An appellant may abandon an appeal (whether wholly or in part) at any time prior to its determination.
(2) Where an appellant abandons his or her appeal prior to the hearing of the appeal, he or she shall do so by serving notice on the Court-Martial Administrator in Form 2 (referred to in this rule as “the notice of abandonment”).
(3) The Court-Martial Administrator shall as soon as practicable after receipt serve a copy of the notice of abandonment on the Director and on the appellant’s commanding officer, and (where relevant) the authorised officer, and shall notify the military judge presiding at the summary court-martial.
(4) Where the notice of abandonment relates to the whole of any appeal, the appeal shall be treated as having been determined on the date on which the copy of the notice is received by the appellant’s commanding officer.
(5) A prosecutor may give notice in writing at any time prior to the hearing of the appeal that he or she does not contest the whole or any specified part of an appeal. In such a case, the notice shall be given to the Court-Martial Administrator, the appellant and the appellant’s commanding officer.
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paragraphs: Where a person subject to military law has been ordered to be tried by court-martial without previous investigation of the charge pursuant to the provisions of section 181, the officer who has made the order shall notify the Court-Martial Administrator of the making of such order and shall refer the order and the charge to the Director and that officer or the Director shall cause to be prepared a statement in writing of the evidence of the witnesses proposed to be called for the prosecution at the trial, without such statement being taken in the presence of the person ordered to be tried.
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paragraphs: (1) A summary or abstract of evidence in accordance with this rule shall be prepared in each of the following cases:
(a) where an accused has been remanded for trial by court-martial; or
(b) in any other case where directed by the Director.
(2) Where a summary of evidence is to be taken, the evidence of all reasonably available witnesses who gave evidence against the accused before the authorised officer, the commanding officer or the investigating officer, and of any other relevant witness shall be taken down in writing or otherwise recorded in the presence of the accused before the commanding officer or before another officer directed by the commanding officer to take such summary.
(3) Every commanding officer and every other officer directed by a commanding officer to take a summary of evidence in accordance with this rule is hereby empowered to administer oaths for that purpose.
(4) The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added to the evidence taken down in writing or otherwise recorded.
(5) The evidence of each witness, when taken down or recorded as provided in sub-rule (2) or (4) shall, unless the witness waives the requirement that it be read or replayed to him or her, be read over or replayed to him or her and the record shall be signed or otherwise authenticated by him or her in such manner as the officer before whom the summary of evidence is taken shall consider satisfactory, and witnessed by that officer.
(6) After all the evidence against him or her has been recorded, the accused shall be asked “Do you wish to make any statement or to give evidence upon oath? You are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing, and may be given in evidence”. Any statement or evidence of the accused shall be taken down or recorded, but he or she shall not be cross-examined on it. If the accused is tried by court-martial, no evidence shall be admitted at the trial of any statement or evidence he or she may have made or given at the taking of the summary of evidence before the above caution was given to him or her.
(7) The accused may call and examine witnesses in his or her defence and their evidence shall be taken as provided in the case of witnesses called for the prosecution.
(8) Save as provided with regard to the accused in sub-rule (6), the evidence of all witnesses shall be taken on oath. The oath shall be administered by the officer taking the summary of evidence.
(9) A witness taking the oath shall hold the New Testament or, if of a faith other than Christian, the appropriate holy book, in his or her hand and shall repeat after the person administering the oath the words: “I swear by Almighty God that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.”.
(10) Where a witness is permitted to make a solemn declaration, the witness shall repeat after the officer taking the summary of evidence the words: “I (name in full) do solemnly promise and declare that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.”.
(11) If a person cannot be compelled to attend as a witness, a written statement of such person’s evidence purporting to be signed by him or her may be read to the accused and included in the summary of evidence.
(12) If, owing to the exigencies of the service or on other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him or her in writing) be readily procured, a written statement of such person’s evidence purporting to be signed by him or her may be read to the accused and included in the summary of evidence. However, if such person can be compelled to attend, the accused may demand that he or she shall attend for cross-examination.
(13) The officer taking the summary of evidence may put such questions to witnesses as he or she may find necessary to elicit the facts relevant to the charges, but he or she shall not cross-examine the accused.
(14) Subject to the following sub-rule, no counsel or representative shall be allowed to appear for the accused or for the prosecution at the taking of the summary of evidence.
(15) Notwithstanding sub-rule (14), where a person subject to military law is charged with an offence for which a person would be required on conviction to be sentenced to imprisonment for life, then each of the following persons namely, the person charged and the person by whom the charge is preferred may, if he or she so wishes, be represented by counsel or by an officer subject to military law, and the person who in relation to the proceedings is the commanding officer may have a legal officer or counsel in attendance on him or her as regards the proceedings, and the proceedings shall be conducted in accordance with Part 8 of these Rules.
(16) Any witness who is not subject to military law may be summoned in writing to attend by the commanding officer of the accused in accordance with Rule 74 and Form 20 of the Court-Martial Rules 2008.
(17) When a witness who is not subject to military law is summoned to attend in accordance with the preceding sub-rule, his or her reasonable expenses of attending shall be paid or tendered to him or her on the service of the summons.
(18) Nothing in this rule shall be construed so as to require a summary or abstract of evidence to be taken after the remand for court-martial by an authorised officer of an accused officer holding a commissioned rank lower than that of Lieutenant-Colonel or Commander in whose case a summary or abstract of evidence has been taken before the charge against him or her was investigated by an authorised officer, unless such authorised officer so directs.
(19) An additional summary or summaries of evidence may be taken by or on behalf of the commanding officer, the authorised officer or the investigating officer in the same manner as is herein provided for a summary of evidence.
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paragraphs: (1) A charge-sheet shall contain the whole issue or issues to be determined or to be tried by a court-martial at one time.
(2) A charge-sheet may contain one or more charges but each charge shall allege only one offence and in no case should an offence be described in the alternative in the same charge.
(3) A charge-sheet may contain alternative charges.
(4) A charge-sheet which is for summary hearing in accordance with section 177C, 178C or 179C (a “summary charge-sheet”) may be prepared, signed and dated by any person having authority to prefer such a charge.
(5) A charge-sheet in respect of any offence which is to be tried by court-martial (a “court-martial charge-sheet”) shall be signed and dated by or on behalf of the Director.
(6) Any court-martial charge-sheet, when served on the accused person, shall be copied to the Court-Martial Administrator and the accused’s commanding officer.
(7) Where any court-martial charge-sheet is served on an accused, there shall be served also a notice in writing advising of the right of an accused person to apply for a legal aid (preliminary proceedings) certificate, within the meaning of section 26 of the Courts-Martial Appeals Act 1983 or a legal aid (court-martial) certificate, within the meaning of section 27 of the Courts-Martial Appeals Act 1983 , and identifying the prescribed authority, within the meaning of section 25 of the Courts-Martial Appeals Act 1983 , for the purpose of any application for legal aid.
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paragraphs: Every charge-sheet shall begin with the name and description of the person charged and should state his or her number, rank, name and unit (if any) and where he or she does not at the time of the trial belong to the Permanent Defence Force should show by the description of him or her, or directly by an express averment, that he or she is subject to military law in respect of the offence charged.
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paragraphs: (1) Each charge should be divided into two parts:—
(a) the statement of the offence; and
(b) the statement of the particulars of the act, conduct, disorder, neglect or omission constituting the offence.