Defence (Amendment) Act 2007

Insertion of new sections: notice, right to elect, summary disposal and remand.

23.— The following sections are inserted after section 177 of the Principal Act:

“Notice.

177A.— Where a charge against a person subject to military law is—

(a) to be investigated under section 177 by the person’s commanding officer or an officer appointed for that purpose by the Deputy Chief of Staff (Support), or

(b) referred to an authorised officer for summary investigation under section 177(2)(a)(ii)(III),

the person charged shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated—

(i) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and

(ii) a copy of the charge sheet containing particulars of the offence concerned, a list of the witnesses who will be giving evidence against the person and, where available, an abstract of the evidence to be given against the person and a copy of any witness statements.

Right to elect for trial by court-martial.

177B.— (1) Before disposing of a charge summarily under section 177C, the authorised officer shall, in the prescribed manner—

(a) ask the person charged whether he elects to have the charge disposed of summarily by the authorised officer or to be tried by court-martial, and

(b) inform the person charged that he may obtain legal advice regarding the matter of the election and, where the person wishes to obtain such legal advice, that the hearing shall be adjourned for such period as the authorised officer considers reasonable (which period shall not in any case be less than 48 hours).

(2) Where the person charged elects to be tried by court-martial, whether or not the person obtains legal advice, the authorised officer shall remand the person charged for trial by court-martial and shall refer the charge to the Director for his directions but otherwise shall proceed to dispose of the charge summarily under section 177C and may do so then and there.

(3) Where two or more charges are brought against the person concerned, an election for trial by court-martial in respect of any of the charges shall take effect as an election in respect of all of them.

Summary disposal by authorised officer.

177C.— (1) This section applies where the person charged elects under section 177B to have the charge disposed of summarily by the authorised officer.

(2) The authorised officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing.

(3) If the authorised officer determines that the charge has not been proved he shall dismiss the charge.

(4) The authorised officer may, after hearing the evidence or without hearing the evidence, remand the person charged for trial by court-martial and, in that case, shall refer the matter to the Director for his directions.

(5) After hearing the evidence or, if the person charged consents to the attendance of witnesses being dispensed with and admits the offence charged, after reading a summary or abstract of the evidence, where the authorised officer makes a determination that the charge has been proved, he shall—

(a) record the determination, and

(b) subject to subsection (6) of this section—

(i) in the case of a person subject to military law as an officer pursuant to section 118(a), (b) or (c) or as a non-commissioned officer in the rank of sergeant major or battalion quarter-master sergeant or their equivalent naval ranks, award one of the following punishments:

(I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year;

(II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of that person;

(III) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate;

(IV) severe reprimand;

(V) reprimand,

(ii) in the case of a person subject to military law as an officer pursuant to section 118(d) or (e), award one of the following punishments:

(I) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate;

(II) severe reprimand;

(III) reprimand.

(6) Where the authorised officer records a determination that two or more charges against the person have been proved, he shall award a single punishment in accordance with subsection (5) of this section in respect of the charges taken together.

(7) The person charged may have an assisting person present at but not participating in the hearing before the authorised officer.

(8) The evidence against the person charged taken before the authorised officer shall, if the person charged so demands, be taken on oath, and in that event there shall be administered to each witness the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for this purpose the authorised officer may administer oaths or solemn declarations.

(9) Where the authorised officer makes a determination under this section that a charge has been proved and the offence charged occasioned any personal injury, expense or loss or destruction of, or damage to, any property, the authorised officer may, instead of or in addition to any punishment which he is authorised by this section to award in respect of the offence, order that there shall be paid by the person charged, as compensation for the personal injury, expense, loss, damage or destruction so occasioned, to any person who has suffered such personal injury, expense, loss, damage or destruction, such sum as the authorised officer may direct not exceeding the lesser of—

(a) the amount required to make good such personal injury, expense, loss, damage or destruction, or

(b) subject to subsection (10) of this section, an amount equal to twenty-eight days’ pay of the person charged.

(10) A compensation order under subsection (9) of this section may provide for payment of the compensation by such instalments and at such times as the authorised officer shall in all the circumstances consider reasonable subject to a maximum deduction of seven days’ pay in any one calendar month.

Remand for trial by court-martial.

177D.— (1) Where the person charged is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and the matter is referred to the Director for his directions, the Director may direct that the charge (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit) be referred back to an authorised officer and the authorised officer shall either dismiss or, subject to the right to elect to be tried by court-martial pursuant to section 177B, dispose of the charge or charges so referred back summarily in accordance with section 177C.

(2) Where the person charged—

(a) is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and no direction is given under subsection (1) of this section, or

(b) is remanded for trial by court-martial under section 177 (other than under section 177(2)(a)(ii)(II)) or 177B,

the Director may—

(i) subject to section 192, in respect of the charge concerned (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit)—

(I) direct that the matter be referred for trial by summary court-martial, or

(II) direct that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in his direction, to try the person charged,

or

(ii) withdraw the charge.”.