DEFENCE PART I GENERAL Citation and commencement 1 These Rules may be cited as the Summary Appeal Court (Air Force) Rules 2000 and shall come into force on 2nd October 2000. Interpretation 2 1 In these Rules— “ the Act ” means the Air Force Act 1955; “the court” means the summary appeal court established under section 83ZA of the Act; “the court administration officer” means the person appointed to be the court administration officer for the court in accordance with section 83ZA of the Act; “judge advocate” means a judge advocate appointed under section 83ZB of the Act; “the judge advocate”, in relation to the hearing of an appeal under section 83ZE of the Act, means the judge advocate specified to hear the appeal in accordance with section 83ZD(1)(a) and (3) of the Act; “proper address”, in relation to any person, shall be construed in accordance with rule 3(2) and Schedule 1; “Record of Summary Dealing” shall have the meaning assigned to it by rule 8(4). 2 Where these Rules provide for the jurisdiction of the court to be exercised by a judge advocate sitting alone, the judge advocate who is to exercise the jurisdiction of the court in a particular case shall be specified by or on behalf of the Judge Advocate General. 3 In these Rules, the expression “commanding officer” in relation to any person means— a where the person is subject to military law, such officer as would be determined by regulations of the Defence Council under section 82(1) of the Act as the commanding officer of that person if that person were charged with an offence under the Act; b where the person has ceased to be subject to military law (except to the extent that he is treated as being so subject by virtue of section 131 of the Act), the officer for the time being in command of the unit to which that person belonged immediately before he ceased to be subject to military law; c where the person was dealt with summarily for the offence to which the appeal or proposed appeal relates because at the material time he was a person to whom Part II of the Act applied by virtue of section 209 of the Act— i the officer who exercised the functions of the commanding officer under section 76 of the Act in relation to the offence; or ii where that officer no longer holds the post which he held when exercising those functions, the officer who for the time being holds that post. Service of documents 3 1 Subject to rule 30(2), any notice or other document required by these Rules to be served on a person may be served on that person by— a delivering it to him; b leaving it at his proper address; c sending it by post to that address; or d transmitting it to him by FAX or other means of electronic data transmission in accordance with rule 4. 2 For the purposes of these Rules, the reference to a person’s proper address shall be to such address determined in accordance with Schedule 1. 3 Paragraph (4) applies to the service of any document on a person bringing an appeal under section 83ZE of the Act, where— a notice has been served in accordance with rule 6(4) of the name and address of the legal adviser appointed by that person; and b no notice of the revocation of that appointment has been given in accordance with rule 6(5). 4 Where this paragraph applies (and without prejudice to paragraph (1)), the document may be served on the appellant by— a delivering it to his legal adviser; b leaving it at the address notified to the court administration officer in accordance with rule 6(4); c sending it by post to his legal adviser at that address; or d transmitting it to his legal adviser by FAX or other means of electronic data transmission in accordance with rule 4. 5 Paragraph (6) applies to the service of a document on a person bringing an appeal under section 83ZE of the Act in any case not falling within paragraph (3). 6 Where this paragraph applies (and without prejudice to paragraph (1)), the document may be served by— a delivering it to the appellant’s commanding officer; b leaving it at the proper address of the appellant’s commanding officer; c sending it by post to the appellant’s commanding officer at that address; or d transmitting it to his commanding officer by FAX or other means of electronic data transmission in accordance with rule 4. 7 Where a document is received by a person’s commanding officer in accordance with paragraph (6), he shall as soon as practicable serve it on that person. 8 In these Rules, “FAX” means the making of a facsimile copy of a document by the transmission of electronic signals. Service by FAX or other means of electronic data transmission 4 1 A document may be transmitted by FAX to a person if— a where the person is the legal adviser of the person to whom the proceedings relate, it is transmitted to the FAX number of any FAX machine at the address notified in accordance with rule 6(4); and b in any other case, it is transmitted to the FAX number of any FAX machine at his proper address. 2 Paragraph (1) shall not apply if the person concerned has indicated in writing that he is not willing to regard a document as having been duly served on him if it is transmitted to a specified FAX number falling within that paragraph. 3 In paragraph (1), the reference to a FAX machine is to any machine which is capable of receiving documents transmitted by FAX. 4 A document may also be transmitted by FAX where the person to be served has indicated in writing to the person serving the document that he is willing to regard a document as having been duly served on him if it is transmitted to a specified FAX number and the document is transmitted to that number. 5 Paragraph (4) shall apply with appropriate modification to a transmission of electronic data other than by FAX as it applies to a transmission by FAX. 6 In paragraph (4), the reference to the person to be served is— a in a case falling within rule 3(4)(d), a reference to the legal adviser appointed by the person to whom the proceedings relate; and b in a case falling within rule 3(6)(d), a reference to the commanding officer. 7 Where a document is transmitted by FAX in accordance with this rule, the person to whom the document is addressed shall be specified in the FAX. Summary appeal court sitting in camera or closed court 5 1 Without prejudice to rules 34 and 36, the court may sit in camera for the whole or any part of a hearing where the court considers that— a it is necessary to do so in the interest of morals or public order; b it is necessary to do so for the purpose of safeguarding the interests of persons under the age of 18 years or protecting the private life of the appellant; or c the interests of justice would be prejudiced by the hearing, or that part of it taking place in public. 2 The court may order that, subject to any exceptions the court may specify, the public shall be excluded from all or any part of a hearing if it appears to the court that it would be against the interests of national security to allow any evidence to be given or statement to be made in public in the course of the hearing or (as the case may be) that part of it. 3 The court may sit in closed court when the members of the court hearing an appeal are deliberating on any matter raised on that appeal. 4 Where the court sits in closed court under paragraph (3) no person shall be present other than the members of the court except any person under instruction who is permitted to be present by the members of the court hearing the appeal. 5 It shall be the duty of the judge advocate to ensure that, where any person under instruction is permitted to be present when the members of the court are deliberating on any matter in closed court, that person takes no part in the deliberations and expresses no opinion to the members of the court. Representation of appellant in proceedings on an appeal 6 1 Subject to rule 7, a person bringing an appeal under section 83ZE of the Act— a shall have the right to be legally represented at a hearing before the court (including a preliminary hearing); b may appoint a person (referred to in these Rules as his “legal adviser”) to act for him in connection with the conduct of the proceedings on the appeal. 2 The appellant’s commanding officer shall secure that the appellant is afforded reasonable opportunity of communicating with his legal adviser for the purposes of preparing his case on the appeal. 3 Without prejudice to paragraph (1)(a), where paragraph (4) applies, any right conferred or duty imposed by these Rules on the appellant may be exercised or, as the case may be, performed by his legal adviser on his behalf. 4 This paragraph applies where a legal adviser appointed under this rule serves notice on the court administration officer specifying— a his name and address; b the name and, where applicable, the rank, service number and unit of the person in respect of whom he is acting; and c the proceedings before the court in connection with which he has been appointed. 5 Where the appellant revokes his legal adviser’s appointment, he shall as soon as reasonably practicable serve notice on the court administration officer and his commanding officer of that fact. Qualifications to be held by legal representatives 7 A person may only represent a person bringing an appeal under section 83ZE of the Act at a hearing before the court or act as his legal adviser if— a he is a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 ; b he is an advocate or a solicitor in Scotland; c he is a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland; d he is a person who has 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. PART II BRINGING AND ABANDONMENT OF APPEALS Bringing of appeals 8 1 For the purposes of section 83ZE(2) of the Act— a a person brings an appeal when he serves on his commanding officer a notice in writing in the form set out in Schedule 2; and b the date on which the appeal is brought is— i where the notice is delivered to the commanding officer or left at his proper address, the date on which it is so delivered or left; ii where the notice is sent by post to the commanding officer at his proper address, the date on which it is received at that address; or iii where the notice is transmitted by FAX or other means of electronic data transmission, the date on which it is so transmitted. 2 Where two or more charges have been tried summarily together and an appeal is brought against more than one of the findings made in respect of those charges, it shall be sufficient for the purposes of paragraph (1) for the appellant to serve a single notice of appeal relating to all matters against which an appeal is brought. 3 Where notice of appeal is served on a person’s commanding officer in accordance with paragraph (1), the commanding officer shall as soon as reasonably practicable— a forward it to the court administration officer; and b serve a copy of it on the prosecuting authority together with— i the Record of Summary Dealing; ii a list of persons whose evidence was not adduced in the proceedings on summary dealing but who appear to the commanding officer to be potential witnesses in the proceedings before the court; iii any material in the possession of the commanding officer which is not annexed to or referred to in the Record of Summary Dealing but which in his opinion may be material to the proceedings before the court; iv copies of any conduct sheets of the appellant; and v a document specifying the appellant’s age and, where applicable, his rank, service record and any recognised acts of gallantry. 4 In these Rules, the reference to the Record of Summary Dealing is to any record of proceedings on summary dealing required to be made in accordance with regulations under section 83 of the Act in respect of the charge to which the appeal relates. Application for leave to extend time for appealing and for leave to bring an appeal out of time 9 1 This rule and rules 10 and 11 shall have effect in relation to— a an application under section 83ZE(2) of the Act to extend the period of time for bringing an appeal; and b an application under section 83ZE(3) for leave to bring an appeal out of time, and any reference in this rule and rules 10 and 11 to an application or an applicant shall be construed accordingly. 2 Notice of an application shall be given in the form set out in Schedule 2 and shall be served on the commanding officer of the person making the application. 3 A person who has given notice of an application in accordance with paragraph (2) may withdraw that notice at any time before the determination of the application by giving notice in writing to his commanding officer who shall forward it to the court administration officer. 4 Where a person gives notice of an application in accordance with paragraph (2), he may at the same time serve on his commanding officer any documents he considers relevant to the determination of the application. 5 On receipt of a notice of application under paragraph (2), the commanding officer shall as soon as reasonably practicable— a forward it to the court administration officer together with any documents served on him under paragraph (4); and b serve on the prosecuting authority copies of any documents forwarded under sub-paragraph (a) together with the documents and any other material referred to in paragraphs (i) to (v) of rule 8(3)(b). Determination of applications 10 1 The powers of the court to determine an application shall be exercised by a judge advocate sitting alone; and, except as provided by the following provisions of this rule, an application shall be determined without a hearing. 2 There is to be a hearing for the purposes of determining an application if— a the applicant requests a hearing in accordance with paragraph (4); or b the judge advocate specified to determine the application so directs. 3 Where the judge advocate is minded to refuse an application without a hearing, the court administration officer shall give notice in writing of that fact to the applicant. 4 On receipt of a notice under paragraph (3), the applicant may request a hearing of the application by giving notice in writing to the court administration officer before the end of the period of 14 days beginning with the date of the notice under paragraph (3). 5 Where there is a requirement for a hearing, the court administration officer shall— a determine the time and place of the hearing; and b serve notice of those matters on the applicant and the prosecuting authority. 6 If, having notified a person in accordance with paragraph (5), the court administration officer changes the time or place of the hearing, he shall notify the person of the change. Notice of decision of the judge advocate on an application 11 1 The judge advocate shall give notice in writing of his decision on an application to the court administration officer who shall serve a copy of it on— a the applicant; b the applicant’s commanding officer; c the prosecuting authority; 2 Where the judge advocate refuses an application, he shall set out in writing his reasons for doing so, and those reasons shall be included in the notice given in accordance with paragraph (1). Application by the authority carrying out a review for leave to refer a case to the summary appeal court 12 1 This rule and rule 13 shall have effect in relation to a reference made under section 115(5A) or (5B) of the Act by the authority carrying out a review under that section. 2 The authority shall give notice to the court administration officer in the form set out in Schedule 2 that he is applying for the leave of the summary appeal court to refer a finding recorded, or punishment awarded, for the court to consider or reconsider as on an appeal. 3 The authority may withdraw the notice given under paragraph (2) at any time before the determination of the application for leave by giving notice in writing to the court administration officer. 4 Where the authority gives notice in accordance with paragraph (2), he shall at the same time serve on the court administration officer any documents he considers relevant to the determination of the application. 5 Where notice is given in accordance with paragraph (2) or (3), the court administration officer shall as soon as reasonably practicable notify— a the Judge Advocate General; b the person to whom the application relates; c that person’s commanding officer; and d the prosecuting authority, of that fact. 6 On being notified under paragraph (5)(c) of the fact that the authority is applying for the leave of the court under section 115(5A) or (5B) of the Act, the commanding officer of the person to whom the application relates shall serve on the prosecuting authority the documents and any other material referred to in paragraphs (i) to (v) of rule 8(3)(b). Determination of application for leave by the authority carrying out a review 13 1 The powers of the court under section 115(5A) or (5B) of the Act shall be exercised by a judge advocate sitting alone. 2 The judge advocate may determine an application for leave made under section 115(5A) or (5B) of the Act without a hearing. 3 Where the judge advocate directs the court administration officer to convene a hearing for the purposes of determining the application, the court administration officer shall— a determine the time and place of the hearing; and b serve notice of those matters on— i the authority making the application; ii the person to whom the application relates; iii that person’s commanding officer; and iv the prosecuting authority. 4 If, having notified a person in accordance with paragraph (3), the court administration officer changes the time or place of the hearing, he shall notify the person of the change. 5 The judge advocate shall give notice in writing of his decision to the court administration officer who shall serve a copy of it on the persons listed in paragraph (3)(b). 6 Where the judge advocate refuses an application for leave made under section 115(5A) or (5B) of the Act, he shall set out in writing his reasons for doing so, and those reasons shall be included in the notice given in accordance with paragraph (5). 7 For the purposes of these Rules, a reference to the court under section 115(5A) or (5B) of the Act shall be treated as an appeal brought by the person to whom the finding or punishment relates against the finding or punishment. Hearings of applications 14 1 Subject to rule 5, the court shall sit in open court when hearing an application in accordance with rule 10 or 13. 2 The applicant shall be entitled to address the court, and for that purpose to be legally represented, at any hearing held in accordance with rule 10. 3 The authority making the application and the person to whom the application relates shall be entitled to address the court, and for that purpose to be legally represented, at any hearing held in accordance with rule 13. 4 The judge advocate may give leave for the prosecuting authority to address the court at any hearing held in accordance with rule 10 or 13. 5 For the purposes of this rule, any legal representation shall be by a person who has one or more of the qualifications listed in rule 7. Abandonment of appeals 15 1 A person may abandon an appeal under section 83ZE of the Act (whether wholly or in part) at any time prior to its determination. 2 Where an appellant exercises the right conferred on him by paragraph (1) prior to the hearing of the appeal, he shall do so by serving notice on the court administration officer in the form set out in Schedule 2 (referred to in this rule as “the notice of abandonment”). 3 The court administration officer shall serve a copy of the notice of abandonment on— a the prosecuting authority; b the appellant’s commanding officer; c the Judge Advocate General; and, d where the appeal falls to be considered by the court on a reference made under section 115(5A) or (5B) of the Act by the authority carrying out a review under that section, that authority. 4 Where the notice of abandonment relates to the whole of any appeal under section 83ZE of the Act, the appeal shall be treated for the purposes of section 118ZA(3)(b) and (4) of the Act (commencement of sentences of detention) as having been determined on the date on which the copy of the notice is received by the appellant’s commanding officer in accordance with paragraph (3). PART III PROCEDURE ON THE BRINGING OF AN APPEAL Respondent to give notice of intentions on receipt of notice of appeal 16 1 Where— a a notice of appeal under rule 8; b a notice under rule 11(1) that an application under section 83ZE(3) of the Act for leave to bring an appeal out of time has been granted; or c a notice under rule 13(5) that an application for leave by the reviewing authority has been granted, has been served on the prosecuting authority and that notice relates to one or more appeals against finding, he shall as the respondent give notice in writing to the court administration officer indicating whether or not he intends to contest any such appeal. 2 Where the respondent has given notice under paragraph (1) that he intends to contest an appeal against finding, he may at any time prior to the hearing of the appeal give notice that he no longer intends to contest it; and any such notice shall have effect for the purposes of these Rules as a notice under that paragraph that he does not intend to contest the appeal. Uncontested appeals 17 1 Where the respondent gives notice under rule 16(1) that he does not intend to contest an appeal, the court shall quash the finding against which the appeal is brought. 2 Where any punishment awarded relates to one or more findings— a each of which is the subject of an appeal, and b in respect of each of which the respondent has given notice under rule 16(1) that he does not intend to contest the appeal, the powers of the court under section 83ZG of the Act with respect to each of the findings and the punishment shall be exercised by a judge advocate sitting alone; and any decision of the judge advocate in exercise of those powers shall be recorded in writing and dated and signed by him. 3 The court administration officer shall serve a copy of any decision of the judge advocate under this rule on— a the appellant; b the appellant’s commanding officer; and c the respondent. Respondent’s papers 18 1 Where the respondent gives notice that he intends to contest an appeal against finding, he shall serve the following (referred to in these Rules as “the respondent’s papers”) on the appellant’s commanding officer and the court administration officer— a a copy of the Record of Summary Dealing; b a summary of the facts and matters of which the respondent proposes to adduce evidence at the hearing of the appeal; c a list of all the persons whose evidence the respondent proposes to rely on at the hearing of the appeal (“the respondent’s witnesses”); d copies of every written statement made by the respondent’s witnesses which contain information as to the facts and matters of which the prosecutor proposes to adduce evidence at the hearing of the appeal; e a list of any exhibits which the respondent proposes to put in evidence and copies of those exhibits; f copies of all unused material; and g a statement of the information which the respondent proposes to present to the court in pursuance of rule 60(2). 2 Where it is not practicable or desirable to make a copy of any exhibit, the respondent shall include in the document prepared in accordance with paragraph (1)(e) details of the whereabouts of the exhibit and the name and address of the person who has custody of it. 3 On receipt of the respondent’s papers, the appellant’s commanding officer shall as soon as reasonably practicable serve them on the appellant, together with— a a statement explaining the requirements of section 11 of the Criminal Justice Act 1967 (notice of alibi) as modified by Part II of Schedule 3 to these Rules; and b a statement explaining that any person whom the appellant reasonably requires to give evidence may be summoned on his behalf in accordance with rule 30 and Schedule 4. 4 Paragraph (3)(a) only applies where the respondent requests the appellant’s commanding officer to serve the statement referred to in that sub-paragraph on the appellant. Service of additional evidence 19 1 If at any time before the commencement of the hearing of an appeal, it appears to the respondent that he will want to adduce at the hearing any evidence additional to that contained, or referred to, in the respondent’s papers, he shall serve a copy of the additional evidence on the appellant’s commanding officer and on the court administration officer. 2 Where it is not practicable or desirable to make a copy of any evidence to which paragraph (1) applies, the respondent shall instead give notice in writing to the appellant’s commanding officer explaining— a the nature of the evidence, and b details of its whereabouts and the name and address of the person who has custody of it. 3 On receipt of any additional evidence under paragraph (1) or a notice under paragraph (2), the appellant’s commanding officer shall as soon as reasonably practicable serve it on the appellant. Witness not called by respondent 20 1 This rule applies where the respondent does not intend to call as a witness— a any person whose statement has been served on the appellant as part of the evidence for the respondent; or b any person in respect of whose evidence he has served notice under rule 48 below. 2 Where this rule applies, unless the appellant waives the requirement, the respondent shall— a serve notice in writing on the appellant that he does not intend to call that person; or b tender that person at the hearing of the appeal for cross-examination by the appellant. Service of statement of relevant matters by respondent in an appeal against punishment 21 1 Where the appeal relates only to any punishment awarded, the respondent shall serve on the appellant’s commanding officer— a a statement of the information which the respondent proposes to present to the court in pursuance of rule 60; and b a copy of the Record of Summary Dealing. 2 On receipt of the documents referred to in paragraph (1), the appellant’s commanding officer shall as soon as reasonably practicable serve them on the appellant. 3 On receipt of the statement referred to in paragraph (1)(a), the appellant shall as soon as reasonably practicable give notice in writing to the respondent of any fact or matter contained in the statement on which he takes issue with the respondent. Notification of the time and place for the hearing of an appeal 22 1 The court administration officer shall give notice in writing of the time which has been fixed for the hearing of an appeal to begin, and the place where the court is to sit, to— a the appellant; b the appellant’s commanding officer; c the respondent; d the Judge Advocate General; and e the persons referred to in paragraph (3). 2 The court administration officer shall consult the Judge Advocate General before specifying the time and place for the hearing of an appeal. 3 Any notice given under paragraph (1) shall include the relevant particulars of— a the persons (other than the judge advocate) specified to sit as members of the court for the purposes of hearing the appeal; and b the person who has been specified as the waiting member in accordance with rule 25. 4 If, having notified a person in accordance with paragraph (1), the court administration officer— a changes the time or place for the hearing of the appeal; or b specifies a person to sit as a member of the court, or to be a waiting member, in place of one of the persons already notified to that person, he shall notify the person of that fact and, in a case falling within sub-paragraph (b), of the relevant particulars of the person concerned. 5 In this rule, any reference to the relevant particulars of a person are— a in the case of an officer who is subject to air-force law, to his name, rank and unit; b in the case of an officer who is subject to the Naval Discipline Act 1957 , to his name, rank and (as the case may be) ship, naval establishment or unit; c in the case of an officer who is subject to military law, to his name, rank and regiment or corps; d in any other case, to his name and the position held by him in the service of the Crown. PART IV CONSTITUTION OF SUMMARY APPEAL COURT TO HEAR PARTICULAR APPEALS Officers qualified for membership of the summary appeal court 23 1 Subject to section 83ZC of the Act and rule 24, a naval or military officer falling within paragraph (2) shall be qualified under that section for membership of the court for the purposes of hearing an appeal if the court administration officer considers that the necessary number of military officers so qualified is not (with due regard to the public service) available to sit as members of the court for the purposes of that hearing. 2 A naval or military officer falls within this paragraph if he has held a commission in any of Her Majesty’s naval, military or air forces for a period of not less than two years or for periods amounting in the aggregate to not less than two years. 3 In this rule— “mililtary officer” means an officer belonging to Her Majesty’s military forces and subject to military law; and “naval officer” means an officer belonging to Her Majesty’s naval forces and subject to the Naval Discipline Act 1957. Officers who are ineligible to hear particular appeals 24 An officer shall not be eligible to sit as a member of the court for the purposes of hearing an appeal (although otherwise qualified under section 83ZC of the Act or rule 23) if— a he has been the appellant’s commanding officer at any time between— i the date on which any offence to which the appeal relates was reported to the appellant’s commanding officer under section 76(1) of the Act, and ii the date of the hearing of the appeal; b he acted as the appropriate superior authority under section 76B of the Act in relation to any charge to which the appeal relates; c he was the higher authority to whom any charge to which the appeal relates was referred under section 76(5) of the Act; d as higher authority, he approved or otherwise consented to any punishment awarded in respect of any charge to which the appeal relates; e he has at any time investigated the subject matter of any charge to which the appeal relates; f he has at any time held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of any charge to which the appeal relates. Waiting member 25 The court administration officer shall specify one person, who is qualified for membership of the court under section 83ZC of the Act or rule 23, to be a reserve member of the court for the purposes of hearing the appeal (referred to in these Rules as “the waiting member”). Appointment of court officials 26 The court administration officer may at any time appoint a person or persons to act as— a court recorder; b interpreter, at a hearing before the court (including a hearing before a judge advocate sitting alone). PART V EVIDENCE Rules of evidence etc. 27 1 The following enactments, namely— a section 99(1) and (3) of the Act (rules of evidence); b section 99A(1), (2) and (5) of the Act (proof by written statement); c section 12 of the Criminal Justice Act 1967 (application of sections 10 and 11 of that Act to courts-martial); d section 113(12) of the Police and Criminal Evidence Act 1984 (application of Parts VII and VIII of that Act to the armed forces); e paragraphs 1 to 6 of Schedule 13 to the Criminal Justice Act 1988 (evidence before courts-martial etc.), shall apply in relation to proceedings before the court as they apply in relation to proceedings before courts-martial under the Act, subject to the modifications referred to in paragraph (2). 2 In relation to proceedings before the court— a the reference in section 99(1) of the Act to service modifications shall have effect as a reference to the provisions of this Part of these Rules; b the reference in section 99A(1) of the Act to service modifications shall have effect as a reference to the modifications to section 9 of the Criminal Justice Act 1967 specified in Part I of Schedule 3; c the reference in section 12 of the Criminal Justice Act 1967 to such modifications as may be prescribed by the Secretary of State by regulations shall have effect as a reference to the modifications to sections 10 and 11 of that Act specified in Part II of Schedule 3; and d the reference in section 113(12) of the Police and Criminal Evidence Act 1984 to modifications which the Secretary of State may by order specify shall have effect as a reference to the modifications to Parts VII and VIII of that Act specified in Part III of Schedule 3. Admission of facts or matters contained in the respondent’s papers 28 1 The appellant may admit any fact or matter specified in the respondent’s papers, being a fact or matter which the respondent has indicated he proposes to adduce in evidence at the hearing of the appeal, and the admission shall as against the appellant be conclusive evidence in the appeal of the fact or matter admitted. 2 An admission under this rule— a may be made before or at the hearing of the appeal to which it relates; b if made otherwise than at the hearing, shall be in writing; and c may only be made if the appellant is legally represented and, where it is made in writing, shall be signed by the appellant’s legal adviser on his behalf. 3 An admission under this rule may be withdrawn with the leave of the court. 4 This rule is without prejudice to section 10 of the Criminal Justice Act 1967 (as it has effect in relation to proceedings before the court by virtue of rule 27 and Schedule 3). Evidence through television link etc. 29 1 A person other than the appellant may give evidence through a live television link or other similar arrangements (“live link”) if the witness is not in the country where the court is sitting for the purposes of hearing the appeal; but evidence may not be so given without the leave of the court. 2 Where an application for leave for a witness to give evidence through a live link is made at the hearing of the appeal, it shall be made as soon as practicable after the commencement of the hearing. 3 Where such an application is to be made at the hearing of the appeal, it may not be made without the leave of the judge advocate unless not less than 7 days before the commencement of the hearing the party making the application has served a notice on the other party and the court administration officer stating— a the grounds of the application; b the name of the witness; c where the witness is under the age of 18 years, the date of birth of the witness; d the country and place where it is proposed the witness will be when giving evidence; and e the name, occupation and relationship to the witness of any person proposed to accompany the witness and the grounds for believing that person should accompany the witness when giving evidence. 4 The court may make the grant of leave subject to such conditions as it considers necessary with respect to the manner in which the evidence is to be given, including— a specifying the place where the witness is to give evidence; and b specifying the persons in whose presence the witness is to give evidence. 5 Where an application for leave for a witness to give evidence through a live link is made at a preliminary hearing, the powers of the court to grant leave shall be exercised by the judge advocate before whom the hearing takes place. Witness summons 30 1 Schedule 4 shall have effect with respect to summoning persons— a to give evidence, or b to produce any document or thing, for the purposes of proceedings on an appeal under section 83ZE of the Act. 2 A witness summons issued in accordance with Schedule 4 shall be served on the witness— a by delivering it to him; b by leaving it for him with a person at his usual place of abode; c by post in a letter addressed to him at his last known or usual place of abode; or d where the witness is subject to military law, air-force law or the Naval Discipline Act 1957, by serving it on his commanding officer. 3 Where a witness summons is served on a person’s commanding officer in accordance with paragraph (2)(d), the commanding officer shall serve the witness summons on that person. Oaths and affirmations 31 1 An oath shall be administered to any person attending a hearing of the court as an officer or other person under instruction or interpreter. 2 A witness before the court— a shall be examined on oath if he has attained the age of 14 years; b shall give evidence unsworn if he is under that age. 3 Unsworn evidence admitted by virtue of paragraph (2)(b) may corroborate evidence (sworn or unsworn) given by any other person. 4 If— a a person required to take an oath for the purposes of proceedings before the court objects to being sworn, or b it is not reasonably practicable to administer an oath to such a person as aforesaid in the manner appropriate to his religious belief, he shall be permitted to make a solemn affirmation instead of taking an oath. 5 A person who may be permitted under this rule to make his solemn affirmation may also be required to do so, and for the purposes of this rule “reasonably practicable” means reasonably practicable without inconvenience or delay. 6 Any oath or affirmation shall be administered in the form and manner set out in Schedule 5 by the judge advocate, or, where the judge advocate so directs, by any other member of the court acting on his behalf. PART VI MATTERS PRELIMINARY TO THE HEARING OF AN APPEAL Power of the summary appeal court to hear more than one appeal at the same time 32 1 The court may decide to hear two or more appeals at the same time where it appears to be in the interests of justice to do so. 2 The court may make a determination under paragraph (1) of its own motion or on the application of the prosecuting authority or of a person who is the appellant in one or more of the appeals to which the application relates. 3 The power of the court to make a determination under paragraph (1) shall be exercised by a judge advocate sitting alone. 4 Before refusing an application under paragraph (2) or making a determination under paragraph (1), the judge advocate shall afford the prosecuting authority and any person who is the appellant in any of the appeals to which the application or determination relates the opportunity of making representations to him. 5 Where a judge advocate makes a determination under paragraph (1), he shall direct the court administration officer to specify the same time and place for the hearing of each of the appeals to which the determination relates. Preliminary hearings 33 1 The court may direct the court administration officer to convene a hearing prior to the commencement of the hearing of the appeal— a of its own motion; or b on the application of the respondent or the appellant, and such a hearing shall be referred to in these Rules as a preliminary hearing. 2 The power to direct a preliminary hearing under paragraph (1) may be exercised notwithstanding that a preliminary hearing has already been held by virtue of that paragraph. 3 An application under paragraph (1)(b) shall be made in writing in the form set out in Schedule 2 and shall be served on the court administration officer. 4 The applicant shall serve a copy of the notice given under paragraph (3) on the other party to the proceedings. 5 Before directing the court administration officer to convene a preliminary hearing the court shall afford the appellant and the respondent the opportunity of making written representations to it. 6 Paragraph (5) shall not oblige the court to afford any party the opportunity of making representations where it appears to it that it would be impracticable to do so, or would cause unnecessary delay. 7 The functions of the court under this rule and rule 34 shall be exercised by a judge advocate. 8 On receipt of a direction under paragraph (1), the court administration officer shall— a specify the time and place for the preliminary hearing to take place; b serve notice in writing of those matters on the parties to the appeal; c arrange for the attendance at the hearing of a court recorder and, if the judge advocate or any party so requests, an interpreter. 9 Paragraphs (4) to (6) and (8) are subject to rule 34. Preliminary hearing without notice to the appellant 34 1 This rule applies where the respondent applies for a preliminary hearing to be held in accordance with rule 33, but considers that it is in the public interest for the hearing to be held without the participation of the appellant. 2 The respondent shall include with the notice under rule 33(3) a statement that he considers that it is in the public interest for a preliminary hearing to be held without the participation of the appellant and the reasons why he considers that to be the case. 3 Rule 33(4) (requirement to serve a copy of the notice of application for a preliminary hearing on the other party) shall not apply. 4 The court shall determine whether in the interests of justice a preliminary hearing should take place without the participation of the appellant; and where it so determines— a paragraphs (5) and (6) of rule 33 shall not apply in relation to the application for a preliminary hearing by the respondent; and b paragraph (8)(b) of that rule shall have effect as if it required the court administration officer only to serve notice of the date, time and place of the preliminary hearing on the respondent. Matters capable of being dealt with at a preliminary hearing 35 1 Any matter relating to or affecting the hearing of the appeal may be considered at a preliminary hearing including— a any question as to the admissibility of evidence; b any question as to the jurisdiction of the court in relation to any issue raised on the appeal; c any question as to whether the whole or any part of the hearing of the appeal should not be held in open court; d any question as to the exercise by the court of its powers under rule 32; e any matter relating to the evidence to be given at the hearing of the appeal, including any matter relating to the persons who are or may be required to give evidence as witnesses at the hearing; f any question relating to the summoning of witnesses (including whether a witness summons should be held to be of no effect); g any other question of law, or of the practice or procedure of the court, relevant to the proceedings on the appeal. 2 A preliminary hearing shall be a hearing before a judge advocate sitting alone, and he may give such orders, rulings or directions relating to any matter raised at the hearing as he thinks fit. 3 Any ruling or order made at a preliminary hearing shall have effect until the conclusion of the proceedings on the appeal unless it appears to a judge advocate on application at any stage during the proceedings (including at a subsequent preliminary hearing) that the order or ruling should be varied or discharged. Preliminary hearings in chambers 36 1 A preliminary hearing shall take place before a judge advocate in chambers. 2 Except with the leave of the judge advocate, and subject to paragraph (3) and rule 34, the only persons entitled to be present at a preliminary hearing are the court administration officer, the respondent, the appellant, any legal representative of the appellant, the clerk of the court, the court recorder and any interpreter. 3 Where any question as to the exercise by the court of its powers under rule 32 falls to be considered at a preliminary hearing, any person who is an appellant in any of the appeals which may be affected and any legal representative of his shall be entitled to be present at the hearing. Presence at preliminary hearing by live TV link 37 1 Subject to paragraph (3), a person mentioned in paragraph (2) shall be treated as being present at a preliminary hearing (and shall be entitled to be heard as if so present) if, whether by means of a live television link or similar arrangements (“live link”), he is able to see and hear and to be seen and heard by— a the judge advocate before whom the hearing is taking place; b any witness giving evidence at the hearing; and c the other persons who are entitled to be present at the hearing in accordance with rule 36. 2 The persons are the respondent, the appellant, any legal representative of the appellant, any interpreter and any person entitled to be present at the hearing by virtue of rule 36(3). 3 Paragraph (1) shall only have effect in relation to the presence of any person at a preliminary hearing if prior to the hearing— a the appellant, b the respondent, and c any person entitled to be present at the hearing by virtue of rule 36(3) (other than in the capacity of legal representative), have given notice in writing to the court administration officer that they consent to the person’s presence at the hearing by live link. PART VII PRACTICE AND PROCEDURE OF THE SUMMARY APPEAL COURT IN RELATION TO THE HEARING OF AN APPEAL Sittings and adjournments 38 1 The court shall sit at such times and for such periods of the day as seem to the members of the court hearing an appeal to be reasonable. 2 The court shall not sit on Saturday or Sunday unless in the opinion of the members of the court hearing an appeal it is necessary to do so. 3 The judge advocate may direct that the hearing of an appeal be adjourned if he is satisfied that an adjournment is necessary in the interests of justice. 4 Where— a the hearing of an appeal is adjourned, and b the time and place for the hearing to resume is not fixed by the court at the adjourned hearing, the court administration officer shall notify the parties in writing of the time fixed for the hearing to resume and the place where the court is to sit for the resumed hearing. Challenges by the appellant 39 1 An appellant shall be entitled to object, on any reasonable grounds, to any member of the court hearing his appeal or any interpreter. 2 Any objection to a member of the court shall be made immediately before the opening of the respondent’s case. 3 Every objection made by the appellant shall be determined by the judge advocate who shall announce his decision in open court. 4 If more than one member of the court is objected to, the objection to each shall be considered in the following order— a the judge advocate; b the other members of the court specified to hear the appeal in order of seniority. 5 If an objection to the judge advocate is allowed, the hearing of the appeal shall be postponed. 6 If an objection to any member of the court is allowed, a waiting member in respect of whom no objection is made shall take his place; and, if there is no such member, the hearing of the appeal shall be postponed. 7 Where the hearing of an appeal is postponed in accordance with paragraph (5) or (6), the court shall be reconstituted for the purposes of hearing the appeal. 8 In any case where the court was to hear appeals by more than one appellant together at the same time, the judge advocate may direct that a postponement under paragraph (5) or (6) shall only apply to the hearing of the appeal of any appellant whose objection had given rise to, or contributed to the need for, the postponement. 9 In this rule, any reference to a waiting member is to an officer specified as such in accordance with rule 25. Interruption of hearing where a member of the court is unable to continue 40 Where, after the commencement of the hearing of an appeal, a member of the court dies or is for any other reason unable to continue hearing the appeal, the hearing shall be discontinued and the court shall be reconstituted for the purposes of beginning again the hearing of the appeal. Refixing of postponed and interrupted hearings 41 Where the hearing of an appeal is postponed in accordance with rule 39(5) or (6) or discontinued in accordance with rule 40, rule 22 shall have effect with respect to the reconvened hearing. Procedure to be adopted where more than one appeal against finding 42 Where at a hearing it is necessary for the court to determine more than one appeal against a finding, those appeals shall be heard at the same time and shall be determined before any appeal against punishment awarded in respect of any finding is heard. Questions of practice and procedure not covered by the Act or the Rules 43 Any matter relating to the practice or procedure of the court raised at the hearing of an appeal shall, to the extent that it is not provided by the Act or these Rules, be determined by the judge advocate; and, in exercising his powers under this rule, the judge advocate shall adopt such course as appears to him will best serve the interests of justice. PART VIII APPEALS AGAINST FINDING Application of Part VIII 44 This Part shall apply to the hearing of an appeal against a finding that a charge has been proved. Power of respondent to give notice that he no longer contests an appeal against finding 45 The respondent may at any time during the hearing of an appeal against finding give notice that he no longer intends to contest the appeal; and, where he does so, the court shall quash the finding. Addresses to the court 46 1 Without prejudice to paragraphs (3) and (4), the respondent and the appellant may each address the court once with respect to the case against the appellant on the charges being heard by the court. 2 For the purposes of paragraph (1)— a the respondent shall address the court immediately before adducing any evidence; and b the appellant shall address the court immediately after the close of his case or, where there is more than one appellant, after the close of the case of each of the appellants. 3 The respondent or appellant may with the leave of the court address it at any time during the hearing on any matter relating to the appeal or the charges which are being heard by the court. 4 The court shall not exercise its powers under section 83ZG(1)(b) of the Act to substitute another finding without affording the appellant and the respondent an opportunity to address it on the exercise of those powers in the particular case. Provisions which are to apply where there are two or more appellants 47 1 The following provisions of this rule shall apply where in accordance with rule 32 the court has decided to hear appeals by more than one appellant at the same time. 2 The respondent’s case on each of the charges before the court shall be put before the case of any of the appellants, and he may make only one address in pursuance of rule 46(1). 3 The judge advocate shall decide immediately before the hearing of the appeals the order in which the appellants are to put their case and to address the court in pursuance of rule 46(1). 4 Before making a determination under paragraph (3) the judge advocate shall afford the respondent and each of the appellants the opportunity of making representations to him. 5 Where the same legal representative represents two or more appellants, he may make only one address to the court in pursuance of rule 46(1). 6 The court shall not close to deliberate on its decision in relation to any of the findings until the close of the case for each of the appellants and each of the appellants have had the opportunity to address the court in pursuance of rule 46(1). Additional evidence during the hearing of the appeal 48 1 If after the commencement of the hearing of an appeal the respondent intends to adduce evidence other than any evidence served or notified to the appellant in accordance with rules 18 and 19, he shall where practicable serve notice in writing of such intention together with the particulars of the additional evidence on the appellant and the judge advocate. 2 Where notice and particulars are served on the appellant in accordance with paragraph (1), or where evidence is adduced without such notice being given, he may apply to the judge advocate for an adjournment of the hearing. Expert evidence 49 Expert evidence shall not be adduced at the hearing of an appeal without the leave of the judge advocate, unless the party proposing to rely on it has served on the other party to the appeal a statement setting out the substance of the expert evidence not less than 14 days before the date on which the hearing has been fixed to begin. Exhibits 50 1 Any exhibit admitted in evidence shall be marked sequentially with either a number or a letter. 2 Each exhibit or a label attached to it shall be signed by a member of the court hearing the appeal. 3 Each exhibit shall be retained with the record of the proceedings, unless in the opinion of the judge advocate, having regard to the nature of the exhibit or for some other good reason, it is not expedient to retain the exhibit with the record. 4 Where an exhibit is not retained with the record of proceedings, the judge advocate shall ensure that steps are taken for its safe custody. Presence of witnesses 51 1 Except where the person is the appellant, or is present to give expert evidence or evidence as to a person’s character, a person who is to be called to give evidence shall not, except by leave of the judge advocate, be present at the hearing of an appeal against a finding until he is called to give evidence and examined. 2 If while a witness is under examination a question arises as to the admissibility of a question put to him or otherwise with regard to the evidence, the judge advocate may direct the witness to withdraw until the question is determined. 3 The judge advocate may direct any person, who is to give expert evidence or evidence as to a person’s character, to withdraw from the court if he considers that the person’s presence is undesirable in the interests of justice. Examination of witnesses 52 1 The judge advocate may allow a request that the cross-examination or re-examination of a witness be postponed if he is satisfied that there is a good reason for such a request and there is no injustice in doing so. 2 The judge advocate may question any witness and, if he considers it appropriate, may put to the witness a question from any other member of the court. 3 If in the opinion of the judge advocate it is in the interests of justice to do so, the court may at any time— a call any witness whom it has not already heard; b recall a witness; c permit the appellant or the respondent to recall a witness. Submission of no case to answer 53 1 At the close of the case for the respondent the appellant may submit, in respect of any charge, that the respondent has failed to establish a case for him to answer. 2 Where such a submission is made the respondent shall be given the opportunity to address the court on the submission. 3 Any issue raised on such a submission shall be determined by the judge advocate who shall give such directions to the court as he thinks fit. Finding that charge has not been proved after the close of the respondent’s case 54 1 The court may at any time after the close of the case for the respondent find that a charge has not been proved, and where they so find they shall quash the finding that the charge has been proved made under section 76B of the Act. 2 The court shall give an opportunity to the respondent to address it before making a finding under paragraph (1). Witnesses for the appellant 55 Except with the leave of the judge advocate, if the appellant elects to give evidence he shall be called before any other witnesses for the appellant. Evidence in rebuttal 56 With the leave of the judge advocate, the respondent may call or recall a witness to give evidence on any matter raised by the appellant in relation to a charge which the respondent could not— a properly have dealt with before the appellant disclosed his case; or b reasonably have foreseen. Deliberation on finding 57 1 After the close of the case for the appellant, the court shall close to deliberate on its decision in relation to each finding. 2 During its deliberation on any such finding, the court shall not separate until the decision on the finding has been reached, unless the judge advocate directs that in the interests of justice the court may separate. 3 The vote of each member of the court shall be given orally; and the vote of each member of the court qualified for membership under section 83ZC of the Act or rule 23 shall be given in reverse order of seniority and before the vote of the judge advocate. 4 In paragraph (1) and in rule 58, the reference to each finding is to each finding under section 76B of the Act to which the charges heard by the court relate. Record of decision of the court on finding 58 1 The decision of the court on each finding, and (except where the decision is to quash the finding) the reasons for it, shall be announced separately in open court by the judge advocate. 2 The decision of the court on a finding, shall be recorded in writing and dated and signed by the members of the court hearing the appeal. PART IX PRACTICE AND PROCEDURE RELATING TO THE POWERS OF THE COURT TO VARY PUNISHMENT AWARDED Application of Part IX 59 This Part shall have effect in relation to the practice and procedure of the court— a with respect to the exercise of its powers under section 83ZG(2)(b) or (3) of the Act (powers of the court to vary punishment awarded); and b on an appeal against any punishment awarded. Information to be provided by the respondent 60 1 The respondent shall provide the court with information concerning— a any punishment awarded on summary dealing against which an appeal is brought; b where the appeal is only against finding, any punishment awarded in respect of that finding; c where any punishment referred to in paragraphs (a) and (b) relates to any finding which is not the subject of an appeal, the particulars of the offence to which the finding relates; and d such other matters as appear to the respondent to be relevant to the exercise by the court of its powers under (as the case may be) section 83ZG(2), (3) or (4) of the Act. 2 The information referred to in paragraph (1)(d) shall, as far as practicable, include information concerning— a the appellant’s age and rank; b the appellant’s service record; c any recognised acts of gallantry; d the particulars of any other offence (whether under the Act or otherwise) of which the appellant has been found guilty (during his service or otherwise), provided that any convictions treated as spent for the purposes of the Rehabilitation of Offenders Act 1974 shall be indicated as such; and e particulars of any formal police caution administered to the appellant by a constable in England and Wales or Northern Ireland. 3 A record of antecedents signed by the appellant may be accepted in evidence by the court under paragraph (2)(d) where the appellant has admitted that he has been found guilty of each offence listed in the record and has had explained to him the purpose for which such admission was sought. 4 Unless the appellant so requires, the matters referred to in this rule need not be adduced in compliance with the strict rules of evidence. Determining disputes of fact 61 1 Where on an appeal which relates only to the award of punishment there are disputed facts in the case, any issue of fact may be tried by the court. 2 Where an issue of fact is tried in accordance with paragraph (1)— a the judge advocate may direct the respondent to call any witness to give evidence, and b the respondent and the appellant may, with the leave of the judge advocate, adduce evidence. 3 The court shall sit in closed court while deliberating on its findings on the issue of fact. 4 The decision of the court on the issue of fact, and the reasons for it, shall be announced in open court by the judge advocate. Evidence on behalf of the appellant etc. 62 1 The appellant may— a give evidence on oath and call witnesses; b produce to the court any document or written report; c address the court, on any matter relevant to the award of punishment. 2 Unless the respondent requires otherwise, any document or report referred to in paragraph (1)(b) need not be adduced in compliance with the strict rules of evidence. Deliberation on punishment 63 1 The court shall close to deliberate on its decision on any punishment awarded. 2 Any such decision, and the reasons for it, shall be announced in open court by the judge advocate. 3 The decision of the court on any punishment awarded shall be recorded in writing and dated and signed by the members of the court hearing the appeal. PART X RECORD OF PROCEEDINGS Record of proceedings 64 1 The record of proceedings in relation to an appeal shall include— a where appropriate, the record of the decision of the court on each finding; and b the record of the decision of the court in respect of any punishment awarded. 2 The record of proceedings shall be kept in the custody of the court administration officer for a period of 6 years after the conclusion of the hearing of the appeal. 3 An appellant shall be entitled to receive a copy of the record of proceedings— a on an application to the court administration officer within the relevant period, and b on payment of a fee at such rate as the court administration officer may determine. 4 In this rule, “the relevant period” means, in relation to an appellant, the period of 6 years after the conclusion of the hearing of the appeal. PART XI APPLICATION TO SUMMARY APPEAL COURT TO STATE CASE Application for case to be stated 65 1 An application under section 83ZH(2) of the Act to the court to have a case stated for the opinion of the High Court shall be made in writing and shall be served on the applicant’s commanding officer within 21 days after the date of the decision in respect of which the application is made. 2 The application shall state the grounds on which the decision of the court is questioned. 3 Where an application under section 83ZH(2) of the Act is served on the applicant’s commanding officer under paragraph (1), he shall as soon as practicable serve it on the court administration officer. 4 After making the application in accordance with paragraph (1), the applicant shall as soon as practicable serve a copy of it on the prosecuting authority. 5 On receipt of the application, the court administration officer shall as soon as practicable send it to the judge advocate who sat as a member of the court at the hearing to which the application relates. 6 On receipt of the application, the judge advocate shall inform the court administration officer as to whether or not he has decided to state a case and that officer shall give notice in writing to the applicant of the judge advocate’s decision. 7 If the judge advocate considers that the application is frivolous, he may refuse to state a case and shall in that case, if the applicant so requires, cause a certificate stating the reasons for the refusal to be given to him. Procedure on stating a case 66 1 If the judge advocate decides to state a case the procedure to be followed shall, unless the judge advocate directs otherwise, be the procedure set out in the following provisions of this rule. 2 The applicant shall, within 21 days of receiving the notice referred to in rule 65(6), draft a case and serve a copy of it on the court administration officer and the prosecuting authority. 3 The prosecuting authority shall, within 21 days of receiving a copy of the draft case under paragraph (2), either— a give notice in writing to the applicant and the court administration officer that he does not intend to take part in the proceedings before the High Court; or b indicate in writing on the copy of the draft case that he agrees with it and send the copy to the court administration officer; or c draft an alternative case and serve it, together with a copy of the applicant’s case, on the court administration officer. 4 The judge advocate shall consider the applicant’s draft case and any alternative draft case served on the court administration officer in accordance with paragraph (3)(c). 5 The function of the court in stating a case under section 83ZH(2) of the Act shall be exercised by the judge advocate sitting alone. 6 The judge advocate shall state and sign a case within 14 days after either— a the date on which he receives all the documents required to be served on the court administration officer under paragraph (3); or b the expiration of the period of 21 days referred to in that paragraph, whichever is the sooner. Supplementary provisions relating to stating a case 67 1 A case stated by the court shall state the facts found by the court, the submissions of the parties (including any authorities relied on by the parties during the course of those submissions), the decision of the court in respect of which the application is made and the question on which the opinion of the High Court is sought. 2 Any time limit referred to in rules 65 and 66 may be extended by the judge advocate either before or after it expires. 3 If the judge advocate decides not to state a case but the stating of a case is subsequently required by the High Court by order of mandamus, rule 66 shall apply to the stating of the case save that— a in paragraph (1), the words “If the judge advocate decides to state a case” shall be omitted; and b in paragraph (2) for the words “receiving the notice referred to in rule 65(6)” there shall be substituted the words “the day on which the order of mandamus was made”. Symons of Vernham Dean Minister of State, Ministry of Defence 4th September 2000