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The Armed Forces Discipline Act 2000

Visitors to Aspals will have seen Internet references to the AFDA on our home page. This is another most significant piece of legislation to affect the Armed Forces additional to the Armed Forces Act 1996 which, inter alia,introduced the independent Prosecuting Authorities, abolished confirmation and the role of confirming officer and set up the court-martial administration office as the focal point for trial administration and issuing of the convening order.

Although it was an enlightened piece of legislation, the AFA 96 left many issues unaddressed. Whether the AFDA has resolved those omissions and proves to be an equally enlightened piece of legislation remains to be seen. One thing is clear: the armed forces are different to the rest of society. Their task is different, the demands on their "members" are different, the requirement for commitment is different, the importance of the team as opposed to the individual is different, the price of failure or error is different.

As readers of the Sounding Board will know, whether civilian procedures and laws can so readily translate to a military environment is a matter for debate. Radical ideas for change should be approached with caution. For those who have served in any of the armed forces, especially those who have served in operational environments, these factors are blindingly obvious. It is therefore to be hoped that the changes being introduced enhance unit discipline, morale and functional efficiency, while instilling in the serviceman confidence in the fairness of the overall system.

The principal changes introduced by the AFD Act are as follows:

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A Summary
  1. Detailed provisions relating to custody before and after charge and during court-martial proceedings (trials by SCC have been omitted, although may be addressed in the Armed Forces Act 2001). 
  2. A right to apply for bail pending trial or summary dealing. Such bail hearings will be before a judicial officer. 
  3. Introduces a power for the trial judge advocate to direct the commanding officer of the accused to give orders for the accused's arrest
  4. The right to appeal the summary award of the commanding officer, even if the finding is one which does not result in a financial penalty or loss of liberty. Such appeals will be heard by a new Summary Appeal Court, comprising a specially appointed judge advocate and two military officers.
  5. An appeal against a finding of guilty shall be by way of a rehearing (so that the whole case will be heard again). Appeals against sentence will also be by way of rehearing but only the evidence relevant to sentencing will be reheard.
  6. SAC unable to award any punishment more severe than that which CO in fact awarded
  7. Any appeal must be brought within the period of fourteen days beginning with the date on which the punishment was awarded or within such longer period as the court may allow.
  8. Confirms accused's right to elect trial by court-martial.
  9. Where accused elects trial, the court cannot award any punishment which could not have been awarded by the commanding officer or appropriate superior authority had the election for trial not been made (ie, up to 60 days with permission from Higher Authority).
  10. Where accused elects for trial, the APA can amend/substitute the charge with his consent. If he does not so consent, they can send the revised charged back to the CO for the CO to start his considerations afresh under s.76(1) of the Army Act 1955.
  11. An appeal from the SAC is to the High Court by case stated on a point of law.

  For the official and detailed synopsis of the changes, you should visit the House of Commons notes to the Bill.

See S.I. 2004 No. 1950 - Statutory Instrument 2004 No. 1950 - The Summary Appeal Court (Army) (Amendment) Rules 2004
Explanatory Notes (pdf file)
See S.I. 2004 No. 1937 - The Summary Appeal Courts (Warrant Officers) Order 2004 - Warrant officers qualified to be members of the Summary Appeal Court
See S.I. 2004 No. 1938 (C. 83 ) - The Armed Forces Act 2001 (Commencement No. 4) Order 2004, bringing into force section 20 of the Armed Forces Act 2001
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