MT
RULES OF PROCEDURE
Table of Provisions (109)
Statutory Text (109 Articles)
SUBSIDIARY LEGISLATION 220.04
RULES OF PROCEDURE
16th October, 1970
LEGAL NOTICE 97 of 1970, as amended by Legal Notices 39 and 101 of
1973; Act X of 2000; and Legal Notice 411 of 2007.
The title of these Rules is Rules of Procedure.
(Rules 4, 8, 9 and 88)
Forms for commanding officers
(1)
Delay report.
(2)
Summary of evidence.
(3)
Abstract of evidence.
(4)
Certificate to be attached to abstract of evidence after it has been handed to
the accused.
(5)
Summons to a witness to attend the taking of a summary of evidence.
(1)
Delay Report
Unit Address
Tel: .............................................................................................................
(Convening officer)
Attorney General.
............ Eight day delay report pursuant to the Malta
Armed Forces Act, article 81(2)
Number, rank, name of accused .............................................................................
Date placed in arrest ..................................... ...............
Alleged Offence(s)
Date of Alleged Offence(s)
The accused is in close arrest.
open
The reasons for his retention are .........................................................................
{
The abstract of evidence -
was taken on ....................... ....................
summary
has not yet been taken because
{
Application for trial
was made on .......................... ................
(has not yet been made because
RULES OF PROCEDURE
{ (was
A G.
consulted on ....................................... ........................
(has not yet been consulted because .............................
{ (has
A.G’s
(received on .............................................. ..........................
advice
not yet been received
{ is has being
{ on ........................................................
taken
A.G advice as follows .................
Action
been taken
{ has
not yet been fixed
Date of
trial
has been fixed as ........................ ...................
Reasons for delay since last report ........................................................................
Date ......................................... ........................
Officer commanding accused’s unit
(To be signed personally by the C.O.)
(2)
Summary of Evidence
Summary of evidence in the case of .........................................................
(number, rank, name, unit, or other description).
Taken by the commanding officer of the accused (........................................)
(rank, name, unit) on the direction of the commanding officer of the accused).
................ (number, rank, name, unit or other description) having been duly sworn
states -
(Cross-examined by the accused)
Question 1 ...................................
Answer 1 ...................................
or
(The accused declines to cross-examine this witness)
(Signature and rank (if any)
of witness)
or
........................... (number, rank, name, unit, or other description).
A written statement of this witness’s evidence purporting to be signed by him has
been read to the accused and is included in this summary at page ............... Having
regard to ...................... .
(insert ground for non-attendance of witness - see rule 8(b)) - the attendance of
this witness cannot in my opinion be readily procured.
(The accused does n ot demand the atte ndance of thi s wit ness for cross-
RULES OF PROCEDURE
examination). (The accused demands the attendance of this witness for cross-
examination but the witness is not compellable and has refused to attend.)
Signature of officer taking the
summary of evidence)
The accused having been duly cautioned in accordance with Rule of Procedure
8(c) reserves his defence
or
The accused having been duly cautioned in accordance with Rule of Procedure
8(c) elects (to give evidence on oath) (to make a statement without being sworn) and
to call a witness(es).
The accused .............................................. (number, rank, name, unit or other
description) having been duly sworn states -
(Signature and rank (if any) of
accused if he signs)
....................................................... (number, rank, name, unit or other
description) having been duly sworn states -
(Signature and rank
(if any) of witness)
Certified that Rule of Procedure 8 has been complied with.
This summary of evidence was taken by me at .......................................................
.................. in the presence and hearing of the accused on the ..........................
day(s) of ................... .
(Signature and rank of officer
taking the summary of evidence)
(3)
Abstract of evidence
Abstract of evidence in the case of .......................................................... (number,
rank, name, unit, or other description) consisting of the .............................. (insert
the number of statements) attached statements and ..................................... (insert
the number or precis) precis of evidence of witnesses for the prosecution and
compiled by me (the commanding officer of the accused)(............................. on the
direction of the commanding officer of the accused).
Date ........................ ..............................
(Signature and rank)
RULES OF PROCEDURE
(4)
Certificate to be attached to abstract of evidence
Certified that I ........................................................ on the ...................................
day of ................................... .................... handed to the accused
..................................... a copy of the abstract of evidence relating to him dated the
................................. day of .......................... ............ and duly cautioned him in
accordance with Rule of Procedure 9(2) and that (on the ................................... day
of ........................ ............. he elected to make and sign the statement which is
marked ....................................... and attached to this certificate) (he did not make a
statement).
Dated ..................................... .................
(Signature of certifying officer)
(5)
Summons to a witness to attend the taking of a summary of evidence
To ...................................................
WHEREAS a charge has been preferred against ....................................................
AND WHEREAS I have directed a summary of the evidence to be taken at
........................................... on the ............................... day of .........................
YOU ARE, PURSUANT TO ARTICLE 107 OF THE MALTA ARMED FORCES
ACT, AND RULE 88 OF THE RULES OF PROCEDURE, MADE THEREUNDER
HEREBY SUMMONED and required to attend as a witness for the taking of the said
summary of evidence at ..................................... on the ................................ day of
................................. ....................at ................. o’clock in the ......... noon and to
bring with you the documents hereinafter mentioned, viz
Whereof shall fail at your peril
Given under my hand at ..................................on the ............................... day of
(Signature, rank and unit)
Commanding Officer of the accused.
RULES OF PROCEDURE
(1)
In these Rules
"child" means a person under the age of fourteen years;
"convening a fresh court" includes dissolving the existing court;
"member" when used in relation to a court martial does not
include the president;
"special finding" means, when used in relation to -
(a) article 104 of the Act, any finding which a court-
martial may make in accordance with that article;
(b) article 122 of the Act, a finding in accordance with
sub-article (2) of that article that the accused is not
guilty by reason of insanity;
(c) rule 63(3), a finding that the accused is guilty of the
charge subject to the exception or variation specified
in the finding;
"the Act" means the Malta Armed Forces Act;
"young person" means a person who has attained the age of
fourteen years and is under the age of seventeen years.
(2) Other expressions in these Rules have the same meaning as
if these Rules formed part of the Act.
Arrest and Avoidance of Delay
Amended by
L.N. 39 of 1973.
(Rules 12 and 13)
Charge-Sheets
(1)
Commencement of charge-sheets.
(2)
Statements of offences.
(3)
Illustrations of charge-sheets.
(1) Commencement of Charge-Sheets
Malta Armed Forces Act
Article 178
{ }
{ }
(a)
(a)
of the Malta Armed Forces
The accused ...................
(b)
(b)
Act is charged with -
(number, rank, name and unit)
(1)
(c)
(c)
being subject to military law
(d)
(d)
under article 178(1)
(e)
(e)
}
a warrant officer
{
The accused .........................
of the regular force is
a non-commissioned
(1)
(f) ( n u m b e r, r a n k , n a m e a n d
charged with -
officer
unit)
a soldier
}
{
a warrant officer
(g) The accused .........................
a non-commissioned
of the Armed Forces
(1)
number, rank, name and unit)
officer
of Malta
a man
}
when called out on permanent service
{
undergoing training
employed in Government service in
reserve
is charged with
employment of which it is an express
condition that while employed therein he
is to be subject to military law
}
{
a warrant officer
The accused .........................
a non-commissioned
(1)
(h) number, rank, name and unit)
of the territorial force
officer
a man
when embodied
⎧
⎫
when called out on special service
undergoing training
⎨
⎬
{
drill
attending a
parade
is charged with -
⎩
⎭
serving on the permanent staff of the
territorial force
(1)
(i)
The accused ....................................... (name and unit, etc., with which employed) being
subject to military law under article 178(1)(i) of the Malta Armed Forces Act, is charged
with -
Article 179
}
The accused ......................................................................................... (name and brief
(1)
description) being liable to trail by court-martial under article 179 {(1)}
of the Malta Armed Forces Act,
{(2)}
(2)
is charged with
Article 130
}
(1)
The accused ............................(name) formerly ................................... (former military
description including the manner in which the accused was formerly subject to military
law set out in accordance with the appropriate form in this Schedule) and now liable to
trial by court-martial under the provisions of article 130
{(1)}
{(2)}
(2)
of the Malta Armed Forces Act, is charged with -
(2) Statements of offences
Malta Armed Forces Act
Treachery, cowardice and offences arising out of military service
Article 37
{ }
{ }
(a)
(a)
(b)
(b)
Aiding the enemy with intent
of the Malta Armed Forces
(1)
(c)
(c)
contrary to article 37(1)
Act
(d)
(d)
{ }
(e)
(e)
(a)
of article 37(1) of the
(b)
Knowingly and without lawful excuse doing an act
Malta Armed Forces Act,
(2)
(c)
specified in paragraph
contrary to article 37(2) of
(d)
the said Act.
(e)
}
{
b y t h e e n e m y o f t h e f o r c e ’s
capture
(3)
Negligently causing the
aircraft contrary to article 37(3) of
destruction
the Malta Armed Forces Act
Article 38
}
{
(1)
Communicating with
(1)
of the
}{
}
Giving intelligence to
the
enemy
(2)
Malta
(2)
contrary to article
Armed
Forces
(3)
Disclosing information contrary to article 38
(3)
Act
Article 39
(1)
Cowardice before the enemy contrary to article 39(1) of the Malta Armed Forces Act.
(2)
Inducing cowardice before enemy contrary to article 39(2) of the Malta Armed Forces Act.
Article 40
(a)
Spreading reports relating to operations calculated to create despondency or unnecessary alarm,
contrary to article 40(a) of the Malta Armed Forces Act.
(b)
When before the enemy using words calculated to create despondency or unnecessary alarm
contrary to article 40 (b) of the Malta Armed Forces Act.
RULES OF PROCEDURE
Article 41
(1)
Being captured through disobediences or wilful neglect contrary to article 41(1) of the Malta
Armed Forces Act.
(2)
Failure to take
reasonable steps after
{
}
}
capture to rejoin the force
Preventing
a person from taking
contrary to article 41(2) of
Discouraging
the Malta Armed Force
Act
Article 42
guard duty
Sleeping at his post
contrary to article
{
duty controlling
when on
42(1)(a)
movement
of
the
}
}
guard duty
contrary to article M a l t a
Sleeping when on
duty controlling
Armed
42(1)(b)
{
movement
Forces
Act
guard duty
Drunkenness when
contrary to article
duty controlling
on
42(1)(c)
(1)
movement
{
} {
}
Leaving
when
guard duty
contrary to
of
the
his post
on
duty controlling
article
Malta
Absenting
movement
42(1)(d)
Armed
himself
Forces
Act
}
{
guard duty
Striking
a person on
duty controlling
Using force against
contrary
movement
to article
{
}
42(3) of
(3)
the Malta
guard duty
Armed
Compelling a person
duty
{
}
to let a person pass
Forces
on
controlling
Act
movement
Article 43
}
{
}
(a)
(a)
of the Malta
(b)
Looting contrary to article 43
(b)
Armed For ces
(c)
(c)
Act
Mutiny and insubordination
Article 44
{
}
with violence
contrary to article 44(1)(a) of the Malta
(1)
(a) Mutiny
Armed Forces Act
relating to the enemy
{
}
with violence
contrary to article 44(1)(b) of
(1)
(b) Incitement to mutiny
the Malta Armed Forces Act
relating to the enemy
{
Mutiny
}
(2)
contrary to article 44(2) of the Malta Armed Forces Act
Incitement to
mutiny
Article 45
(a)
Failing to suppress or prevent mutiny contrary to article 45(a) of the Malta Armed Forces Act.
(b)
Failing to report mutiny contrary to article 45(b) of the Malta Armed Forces
Article 46
{
{
Striking
h is su per ior officer con trar y to
Using
}
(1)
(a)
article 46(1)(a) of the Malta Armed
violence to
Forces Act
Offering
{
}
threatening
language to his superior officer
(1)
(b)
Using
contrary to article 46(1)(b) of the
insubordinate
Malta Armed Forces Act
Article 47
(1) Disobeying a lawful command with wilful defiance of authority contrary article 47(1) of the Malta
Armed Forces Act.
(2)
Disobeying a lawful command contrary to article 47(2) of the Malta Armed Forces Act.
Article 48
provost officer
{
}
person exercising
c o n t r a r y t o a rt i c l e 4 8 (a ) o f t h e
(a)
Obstructing a
authority under or
Malta Armed Forces Act
on behalf of a
provost officer
}
(b)
provost officer
{
person exercising
c o n t r a r y t o a rt i c l e 4 8 (b ) o f t h e
Refusing to assist a
authority under or
Malta Armed Forces Act
on behalf of a
provost officer
Article 49
(1)
Disobedience to standing orders contrary to article 49(1) of the Malta Armed Forces Act.
Desertion, absence without leave, etc.
Article 50
(1)
(a)
Desertion contrary to article 50(1)(a) of the Malta Armed Forces Act.
{
}
Persuading
a person to desert contrary to article 50(1)(b) of the Malta Armed
(1)
(b)
Forces Act
Procuring
Article 51
(a)
Absence without leave contrary to article 51(a) of the Malta Armed Forces Act.
{
}
Persuading
a person to absent himself without leave contrary to article 51(b) of the
(b)
Malta Armed Forces Act
Procuring
RULES OF PROCEDURE
Article 52
(a)
Assisting a person to desert or absent himself contrary to article 52(a) of the Malta Armed
Forces Act.
{
}{
}
report without delay
a deserter or absentee
contrary to article
(b)
Failing to
52(b) of the Malta
take steps to cause the
a person attempting to
Armed Forces Act
apprehension of
desert or absent himself
Article 53
{
}
obtain
leave contrary to article 53 of the Malta
Making a false statement to
Armed Forces Act
prolong
Article 54
}
Failing to attend for a military duty
contrary to article 54 of the Malta
Leaving a military duty without permission
Armed Forces Act
Malingering and drunkenness
Article 55
(a)
(a)
{ }
{ }
of the Malta
(1)
(b)
(b)
Malingering contrary to article 55(1)
Armed
(c)
(c)
Forces Act
(d)
(d)
Article 56
(1) Drunkenness contrary to article 56(1) of the Malta Armed Forces Act
Offences relating to property
Article 57
Stealing
property
Fraudulently misapplying
contrary to
{
} {
article
Being
stealing of
public
} {
}
(1) (a)
57(1)(a) of
concerned in
the Malta
the
Conniving at
fraudulent
service
Armed
misapplication of
Forces Act
receives
stolen goods
property
{
}
contrary to
}
{
}
public
undertakes or
where such
article 57(1)(b)
assists in the
goods
(1) (b)
goods were
of the Malta
retention
fraudulently
service
Armed Forces
disposal or
misapplied
Act
realisation of
{
}{
}
Wilfully damaging
public
property contrary to
(1) (c)
a r t i c l e 5 7 ( 1 ) (c ) o f t h e
Being concerned in the wilful
Malta Armed Forces Act
damage of
service
RULES OF PROCEDURE
{
{
}
public
property by fire contrary to
(1) (d)
By wilful neglect damaging
article 57(1)(d) of the Malta
Armed Forces Act
service
contrary
to article
{
}{
}{
}
damage to
public
aircraft
(1) (e) By wilful
57(1)(e) of
aircraft
neglect causing
the Malta
the loss of
service
material
Armed
Forces Act
aircraft
{
{
}
Wi t h o u t l aw f u l a u t h o r i t y
contrary to article 57(1)(f) of the
(1) (f)
disposing of public or service
Malta Armed Forces Act
aircraft
material
{
}
sequestration by or under
a neutral state of the force’s aircraft contrary
(2) Causing the
the authority of
to article 57(2) of the Malta Armed Forces Act
destruction in
Article 58
Stealing
property contrary to
{
Fraudulently misapplying
article 58(a) of the
} {
Malta
Armed
(a)
}
Being concerned in
stealing of fraudulent
Forces Act
misapplication of
the
Conniving at
}
{
receives
stolen goods
where such goods belonged to a person
}
s u b j e c t t o m il i t a r y l a w c o n t r a r y t o
undertakes or assists in the
goods
(b)
article 58(b) of the Malta Armed Forces
retention, disposal or
fraudu lently
Act
realisation of
misapplied
{
}
Wilfully damaging
property contrary to article 58(c) of the
(c)
Malta Armed Forces Act
Being concerned in the wilful damage of
Article 59
{
}{
}
Losing
public
property contrary to article 59(a) of the
(a)
Malta Armed Forces Act
Negligently damaging
service
{
}{
aircraft
losing
contrary to article 59(b) of the Malta
(b) By negligence
aircraft
Armed Forces Act
damaging
material
RULES OF PROCEDURE
{
}
{
}
aircraft
likely to cause
contrary to article
an act
Being guilty
(c)
damage to or the loss
aircraft
59(c) of the Malta
of
neglect
of
material
Armed Forces Act
{
}
public
property by fire contrary to article 59(d) of the
(d) Negligently damaging
Malta Armed Forces Act
service
{
}
Losing
his equipment contrary to article 59(e) of the
(e)
Malta Armed Forces Act
Negligently damaging
{
}
an animal
(f) Neglect of
contrary to article 59(f) of the Malta Armed Forces Act
a bird
{
}
a decoration
c o n t r a r y to a r t ic l e 5 9 (g ) o f t h e M a l t a
granted to him
(g) Making away with
Armed Forces Act
his equipment
Offences relating to and by persons in custody
Article 60
{
}
an investigation
contrary to article 60(1)(a) of the Malta Armed
(1) (a) Delaying
Forces Act
a trial
(1) (b)
Failing to release a person in arrest contrary to article 60(1)(b) of the Malta Armed Forces Act.
(2)
Failing to report the offence for which a person has been placed in custody contrary to article
60(2) of the Malta Armed Forces Act.
(3) (a) Failing to give in writing information relating to a person committed to his charge as a guard
commander contrary to article 60(3)(a) of the Malta Armed Forces Act.
(3) (b)Failing to hand in a report relating to a person in custody received by him as guard commander
contrary to article 60(3)(b) of the Malta Armed Forces Act.
Article 61
(1) Wilfully allowing a person to escape contrary to article 61(1) of the Malta Armed Forces Act.
(2) (a)Releasing a person without authority contrary to article 61(2)(a) of the Malta Armed Forces Act.
(2) (b)Allowing the a person to escape contrary to article 61(2)(b) of the Malta Armed Forces Act.
Article 62
Refusing to obey
{
}
Striking
an officer who orders him into arrest
(1)
contrary to article 62(1) of the Malta
}
Using
Armed Forces Act
violence to
Offering
Striking
contrary to
whose duty it is to
{ }
}
{
}
article 62(2)
apprehend him
Using
(2)
of the Malta
a person
violence to
Armed
Offering
in whose custody he is
Forces Act
Article 63
Escaping from custody contrary to article 63 of the Malta Armed Forces Act
Offences in relation to courts-martial
Article 64
(a)
(a)
(b)
(b)
{ }
{ }
of the Malta
(c)
(c)
Contempt of a court-martial contrary
(1)
Armed
to article 64(1)
(d)
(d)
Forces Act
(e)
(e)
(f)
(f)
Article 65
(1)
Making a false statement contrary to article 65(1) of the Malta Armed Forces Act
Miscellaneous Offences
Article 66
Making a false answer on enlistment contrary to article 66 of the Malta Armed Forces Act
}
Making
{
}
a false
service document contrary to article 67(a)
Signing
(a)
of the Malta Armed Forces Act
Making a false entry in a
Altering
{
}
Altering an entry in
a service document contrary to article 67(b) of the
(b)
Making away with
Malta Armed Forces Act
Suppressing
Defacing
(c)
Failing to make an entry in a service document with intent to defraud contrary to article 67(c) of
the Malta Armed Forces Act.
making
} a false
signing
making a false entry in a
} }
{
altering a
service
contrary to article 67(d) of
document
Being
altering an entry in a
(d) party to
the Malta Armed Forces
Act
making away with a
suppressing a
defacing a
failing to make an entry in a service
document with the intent to defraud
RULES OF PROCEDURE
Article 68
{
}
of a member of a civil population outside
person
Committing an offence against
Malta contrary to article 68 of the Malta
the
property
Armed Forces Act
Article 69
Scandalous conduct unbecoming the character of an officer and a gentleman contrary to article 69 of the
Malta Armed Forces Act
Article 70
an officer of inferior rank or less
{
}
senority
{
Striking
contrary to article 70(a) of
a warrant officer
(a)
the Malta Armed Forces Act
Ill-treating
a non-commissioned officer
another man of the force
{
}
a warrant officer
{
contrary
to
Striking
of inferior rank
a non-commissioned officer
article 70(b) of
(b)
or less senority
Ill-treating
the Malta Armed
another man of the force
Forces Act
Article 71
{
}
a cruel
kind contrary to article 71 of the Malta Armed
Disgraceful conduct of
an indecent
Forces Act
an unnatural
Article 72
(a)
Making a false accusation contrary to article 72(a) of the Malta Armed Forces Act
{
}
Making a false statement
in a complaint contrary to article 72(b) of the
(b)
Malta Armed Forces Act
Wilfully suppressing a material fact
Article 73
Attempting to commit a military offence contrary to article 73 of the Malta Armed Forces Act, that is
to say (set out the offence).
Article 74
}
An act
to the prejudice of good order and military discipline contrary to article 74 of the
Conduct
Malta Armed Forces Act
Neglect
Civil Offences
Article 75
Committing a civil offence contrary to article 75 of the Malta Armed Forces Act, that is to say
........................... (here describe the civil offence in such words as sufficiently describe the offence).
RULES OF PROCEDURE
(3)
Illustrations of charge-sheets
CHARGE-SHEET
The accused No. 213 Private John Borg, 1st Regiment, Royal Malta Artillery, a soldier of the regular
STEALING PUBLIC PROPERTY CONTRARY TO ARTICLE 57(1)(a) OF
THE MALTA ARMED FORCES ACT
in that he
at Mosta on 1st January, 1971 stole a pair of binoculars, public property.
RECEIVING STOLEN GOODS CONTRARY TO ARTICLE 57(1)(b) OF
THE MALTA ARMED FORCES ACT
in that he
at Mosta on 1st January, 1971 stole a pair of binoculars, public property,
knowing or believing the same to be stolen.
B.C. VELLA, Lieut.-Colonel
Commanding 1st Regiment,
Royal Malta Artillery
Commanding officer of the accused
Sliema
16th January, 1971
To be tried by District Court-Martial.
A D. GRIMA, Colonel
Deputy Commander.
Valletta
17th January, 1971.
CHARGE SHEET
The accused No. 462 Corporal John Bartolo, a non-commissioned officer
of the reserve force when called out on permanent service, and No. 632
Private Paul Zarb, a man of the territorial force when embodied, both of the
3rd Regiment. Royal Malta Artillery, are charged with -
Both accused jointly
COMMITTING A CIVIL OFFENCE CONTRARY TO ARTICLE 75 OF THE
MALTA ARMED FORCES ACT,THAT IS TO SAY WILLFUL DAMAGE TO
PROPERTY
in that they
at Msida on 1st January, 1971 wilfully damaged a car belonging to Joseph
Pace.
Corporal Bartolo only
STRIKING HIS SUPERIOR OFFICER CONTRARY TO ARTICLE 46(1)(a)
OF THE MALTA ARMED FORCES ACT
in that he
when on active service at Sliema on 1st January 1971 struck No. 562
Sergeant V. Galea, 3rd Regiment, Royal Malta Artillery.
Private Zarb only
USING INSUBORDINATE LANGUAGE TO HIS SUPERIOR OFFICER
CONTRARY TO ARTICLE 46(1)(b) OF THE MALTA ARMED FORCES
ACT.
in that he
RULES OF PROCEDURE
when on active service at Sliema on 1st January, 1971 said to No. 562
Sergeant V.Galea, 3rd Regiment, Royal Malta Artillery, when asked by him
for his (the accused’s) particulars "Don’t be nosey" or words to that effect.
A.M. BRIFFA, Lieutenant-colonel.
Commanding, 3rd Regiment,
Royal Malta Artillery.
Commanding officer of the accused.
Sliema
9th January, 1971.
To be tried by Field General Court-Martial
P.M. SULTANA, Captain.
Staff Captain "A", authorised to sign for
Commander.
Valletta 10th January, 1971.
RULES OF PROCEDURE
(1) When a person is detained by military authority in
arrest, his commanding officer shall, unless it is impracticable,
within forty-eight hours of becoming aware that he is so detained
have such person brought before him, inform him of the charge
against him and begin to investigate it.
(2) Every case of such a person being detained in arrest
beyond the period of forty-eight hours referred to in this rule
without such investigation having begun and the reason therefore
shall be reported by his commanding officer to higher authority.
(Rule 18)
Record of proceedings before an appropriate superior authority
ACCUSED’S NUMBER, RANK AND NAME ....................................................................
................................................... UNIT ..............................................................................
1. Questions to be put to the accused by the officers dealing with the case
before the charge is read.
Q.
Have you received a copy of the charge-sheet and (summary)(abstract)
of evidence not less than 24 hours ago?
A. ...............................................................................................................
Q.
Have you had sufficient time to prepare your defence?
A. ...............................................................................................................
2. The officer dealing with the case shall the read the charge(s) to the accused
and ask him the following question -
Q.
Have you agreed in writing that the witnesses against you need not give
their evidence in person?
A. ...............................................................................................................
3. If the accused has agreed in writing that the witnesses against him need not
give their evidence in person the officer dealing with the case shall read the
summary or abstract of evidence to the accused if the accused so requires but, if the
accused has not so agreed, the witnesses against him shall give their evidence in
person and it shall be recorded on a separate sheet and be attached to this record.
4. After the summary or abstract of evidence has been read or the witnesses
against the accused have given their evidence, as the case may be, the officer dealing
with the case shall say to the accused
Q.
Do you wish to give evidence on oath or to make or hand in a statement
without being sworn? Your evidence or statement may deal with the
facts of the case, with your character and with matters in mitigation of
punishment.
A. ...............................................................................................................
Q.
Do you wish to adduce any other evidence in your defence?
A. ...............................................................................................................
5. If the accused elects to give evidence or to make a statement or to call
witnesses the evidence for the defence including any statement made by the accused
himself shall be recorded on a separate sheet and attached to this record. The officer
dealing with the case shall then (i) consider all the evidence and determine whether
the accused is guilty of the offence or not; and (ii) if he determines that the accused
is guilty examine and consider the accused’s record of service. If he intends to award
the punishment of forfeiture of seniority of rank or of forfeiture of a sum from pay or
of stoppages or the finding will involve a forfeiture of pay or, in the case of a
civilian, if he intends to award any punishment, he shall not announce and record his
finding unless the accused says in answer to the following question that he will
accept his award.
Q.
Will you accept my award or do you elect to be tried by court-martial?
A.
RULES OF PROCEDURE
6. Finding
A ward...........................................................................................................
Date ........................... ................
(Signature, rank and appointment of
appropriate superior authority)
RULES OF PROCEDURE
Amended by
The report required by article 81(2) of the Act with regard
to the necessity for further delay in bringing an accused to trial
shall be in the form set out in the First Schedule and shall be signed
by his commanding officer. The report shall be sent to the officer
who would be responsible for convening a court-martial for the
trial of the accused and a copy thereof shall be sent direct to the
Attorney General.
L.N. 101 of 1973.
(Rules 20, 64, 68, 77, 88, 89, 92, 93, 94, 98
and 99)
Court-Martial Forms
(1) Convening orders.
(2) Declaration under rules 98 and 99.
(3) Summons to a witness to attend a court-martial.
(4) Notices requiring oral evidence to be given in lieu of a written
statement.
(5) Record of proceedings of the court-martial.
(6) Findings.
(7) Record of reconsideration of finding under rule 77(5).
(8) Service record of accused.
(9) Record of proceedings on revision under article 110 of the Act.
(10) Confirmation.
(11) Determination by a confirming officer or reviewing authority of a
suspended sentence and direction that sentences are to run concurrently
or consecutively.
(12) Restitution order.
(13) Promulgation.
(1) Convening orders.
CONVENING ORDERS FOR A (GENERAL) (DISTRICT) COURT-MARTIAL
Orders by .......................................................................................................................
(Place and date) ....................................................................................................
The detail of officers as mentioned below will assemble at .................................
..............................at ........................ hours on the ........................ day of
............................. ................ for the purpose of trying by a (general) (district)
court-martial the accused person(s) named in the margin.
President
Name etc., of
accused
Members
Waiting members
Judge Advocate*
The Judge Advocate has been appointed by or on behalf of the Attorney General.
RULES OF PROCEDURE
or
..................................................................... is hereby appointed judge advocate.
In the opinion of the convening officer the necessary number of
{
military officers having suitable qualifications is not available to
*
form the court and cannot be made available with due regard to the
public service.
A field officer having suitable qualifications is not in the opinion of
{
*
the convening officer available with due regard to the public
service.
The record of the proceedings will be forwarded to ...............................................
Signed this ........................... day of ....................... ................................
(Signature, rank and appointment of the convening officer)
or
(Signature, rank and appointment of the appropriate staff officer)
Authorised to sign for ...........................................................................
(appointment held by the convening officer)
*Strike out if not applicable.
CONVENING ORDER FOR A FIELD GENERAL COURT-MARTIAL
Orders by ..............................................................................................................
(Place and date) ....................................................................................................
In the opinion of the convening officer it is not possible without serious detriment
to the public service that the accused should be tried by a general or district court-
martial.
The detail of officers as mentioned below will assemble at ....................................
at ............................. hours on the ...................... day of ............................
................ for the purpose of trying by a field general court-martial the following
accused person(s) (name etc., of accused).
President
Name etc., of
accused
Members
Waiting members
Judge Advocate*
The Judge Advocate has been appointed by or on behalf of the Attorney General.
or
RULES OF PROCEDURE
..................................................................... is hereby appointed judge advocate.
In the opinion of the convening officer the necessary number of
{
military officers having suitable qualifications is not available to
*
form the court and cannot be made available with due regard to the
public service.
Three officers having suitable qualifications are not in the opinion
{
*
of the convening officer available without serious detriment to the
public service.
{
It is not in the opinion of the convening officer practicable to
*
appoint an officer other than himself as president.
The record of the proceedings will be forwarded to ...............................................
Signed this ............................. day of ........................... .............................
(Signature, rank and appointment
of the convening officer)
or
(Signature, rank and appointment
of the appropriate staff officer)
Authorised to sign for ...........................................................................................
(appointment held by the convening officer)
* Strike out if not applicable.
(2)
Declaration under rule 98 and 99
Declaration under Rule of Procedure 98
In the case of ........................................................................................................
I ........................................ (the officer who (is) (would be) responsible for
convening a court-martial to try the accused) (the senior officer on the spot) hereby
declare that in my opinion the following exigencies of the service namely
render compliance with the following provisions of the Rules of Procedure ...............
impracticable.
Signed at ........................... this ........................... day of ......................... ............
(Signature)
RULES OF PROCEDURE
Declaration under Rule of Procedure 99
In the case of ........................................................................................................
I ............................................. (the officer who (is) (would be) responsible for
convening a court-martial to try the accused) (the senior officer on the spot) hereby
declare that in my opinion the ......................................... contain(s) information the
disclosure of which would or might be directly or indirectly useful to an enemy.
Signed at ........................... this ........................... day of ......................... ............
(Signature)
(3)
Summons to a witness to attend a court-martial
To .................................................
WHEREAS a court-martial (has been ordered to assemble at .........................)(has
assembled at .............................................) on the ................................. day of
..............................., of .................. for the trial of ...................................... .
YOU ARE, PURSUANT TO ARTICLE 107 OF THE MALTA ARMED FORCES
ACT, AND RULE 88 OF THE RULES OF PROCEDURE, MADE THEREUNDER
HEREBY SUMMONED and required to attend as a witness at the sitting of the said
court at ............................ on the ........................ day of ....................... .............. at
.................. o’clock in the .................. noon and to bring with you the documents
hereinafter mentioned, viz.
and so attend from day to day until you shall be duly discharged, whereof you shall
fail at your peril.
Given under my hand at ............................ on the ................... day of
.................................., .................. .
(Signature, rank and appointment)
An officer authorized to convene a
court-martial*
President of the court*
............... Authorised to sign for ...............
An officer authorized to convene a
court-martial*
*Strike out if not applicable.
RULES OF PROCEDURE
(4)
Notices requiring oral evidence to be given in lieu of a written statement
Notice by a commanding officer
To ...............................................
I ......................................................... commanding .............................................
hereby give notice that I require that ................................................................. shall
give oral evidence in lieu of (his) (her) written statement dated, .............................
at your forthcoming trial by court-martial.
Dated ......................... ................... .
(Signature and rank)
Commanding officer of the accused.
Notice by an accused
To ............................................. commanding ......................................................
I ................................................... hereby give notice that I require that
............................. shall give oral evidence in lieu of (his) (her) written statement
dated ...................................... at my forthcoming trial by court-martial.
Dated ......................... ................... .
(Signature)
(5)
Record of proceedings of a court-martial
A
Page 1
Record of proceedings of a court-martial
Proceedings of a .......................................... court-martial held at .................. on
the .................................. day of ..................... by order of .......................................
dated the .................. day of ................. .............. .
PRESIDENT
MEMBERS
Judge Advocate
Trial of ............................................................................................................
The court comply with the Rule of Procedure 24.
................................ not being available owing to ................................................
the president appoints ........................................... a qualified waiting member to
take his place.
The accused is brought before the court.
Prosecutor ......................................................................
Defending (officer) (Counsel) ...........................................
At ........................................... hours the trial begins.
RULES OF PROCEDURE
The convening order is read in the hearing of the accused, marked ........................
signed by the president or judge advocate and attached to the record.
The names of the president and members of the court are read in the hearing of the
accused and they severally answer to their names.
Q.
Do you object being tried by me as president, or by any of the officers
whose names you have heard read?
A.
The proceedings relating to the objection(s) are recorded
on .................................................................................................................
B
Page 2
Swearing
The president of the court and judge advocate are duly sworn.
The (following) officers under instruction (listed on ............ page) are duly sworn.
Q.
Do you object to ............................ as shorthand writer?
A.
................................................... is duly sworn as shorthand writer.
Q.
Do you object to .............................. as interpreter?
A.
................................................... is duly sworn as shorthand writer.
Special pleas and objections
* The accused offers a plea to the jurisdiction under Rule of Procedure 34. The
proceedings relating to his plea are recorded on page ........ .
* The accused objects to the ...................... charge(s) under Rule of Procedure 35.
The proceedings relating to his objection(s) are recorded on page ................ .
* The accused offers (a) plea(s) in bar of trial under Rule of Procedure 36 in
respect of the ...................... charge(s). The proceedings relating to his plea(s) are
recorded on page .............. .
* The accused ........................... applies under Rule of Procedure 37 to be tried
separately. The proceedings relating to his application are recorded on page .............
* The accused applies under Rule of Procedure 38 to have charges .....................
and ......................... tried separately. The proceedings relating to his application are
recorded on page ........ .
* Strike if not applicable.
Page ........
Arraignment
The charge-sheet is read to the accused and he is arraigned on each charge.
The charge-sheet is signed by the president or judge advocate and inserted in the
record immediately before this page as page(s) ............. .
Are you guilty or not guilty of the first * charge against you which you
have heard read?
Are you guilty or not guilty of the second charge against * you which
you have heard read?
Are you guilty or not guilty of the third charge against * you which you
have heard read?
Are you guilty or not guilty of the fourth charge against * you which
you have heard read?
Are you guilty or not guilty of the fifth charge against * you which you
have heard read?
Are you guilty or not guilty of the sixth charge against * you which you
have heard read?
The accused having pleaded guilty to the ........................ charge(s) Rule
of Procedure 40 is duly complied with in respect of (this) (these)
charge(s).
The accused’s pleas to the remaining charges are recorded overleaf.
* Strike out if not applicable
Page ........
Are you guilty or not guilty of the seventh charge against * you which
have heard read?
Are you guilty or not guilty of the eighth charge against * you which
you have heard read?
Are you guilty or not guilty of the ninth charge against * you which you
have heard read?
Are you guilty or not guilty of the tenth charge against * you which you
have heard read?
RULES OF PROCEDURE
Are you guilty or not guilty of the eleventh charge against * you which
you have heard read?
Are you guilty or not guilty of the twelfth charge against * you which
you have heard read?
* Strike out if not applicable
Page ........
Proceedings on plea(s) of not guilty
Do you wish to apply for an adjournment on the ground that any of the
rules relating to procedure before trial have not been complied with, and
that you have been prejudiced thereby, or on the ground that you have
not had sufficient opportunity for preparing your defence?
The prosecutor (makes an opening address shortly outlining the
facts) (makes an opening address which is summarised below) (hands in
a written address which is read, signed by the president or judge
advocate, marked and attached to the record).
Page ........
The witnesses for the prosecution are called
being duly sworn says
continued on page ...........
Page ........
Proceedings on plea(s) of not guilty (continued)
The prosecution is closed.
The accused submits under Rule of Procedure 55 that there is no case for him to
answer in respect of the ............... charge(s). The proceedings relating to this
submission are recorded on pages .......... .
Defence
Rule of Procedure 56 is complied with
Do you apply to give evidence yourself on oath or do you wish to make
a statement without being sworn?
RULES OF PROCEDURE
Q.
Do you intend to call any other person as a witness in your defence?
A.
Q.
Is he a witness as to fact or to character only?
A.
Q.
Do you wish to make an opening address?
A.
The accused (makes an opening address which is summarised below)
*
(hands in a written address which is read, signed by the president or
judge advocate, marked ....................... and attached to the record).
*
Strike out if the accused does not intend to call witnesses as to fact, other than
himself.
Page ........
(Where the accused makes a statement without being sworn)
The accused (makes a statement, which is recorded on page............ )(hands in a
written statement which is read, marked ............... and signed by the president or
judge advocate, and attached to the record).
(Where evidence on oath is given for the defence)
The witnesses for the defence (including the accused if sworn) are called.
being sworn says -
continued on page .............
Page ........
Proceedings of plea(s) of not guilty (continued)
The ....................... (makes a closing address which is summarised on page
..............) (hands in a closing address which is read, marked .................. signed by
the president or judge advocate and attached to the record).
The ........................ (makes a closing address which is summarised on page
.......... ) (hands in a closing address which is read, marked signed by the president or
judge advocate and attached to the record).
The note of the summing-up of the judge advocate is recorded on page ............. .
Finding(s)
The court close to deliberate on their finding(s).
The court find that the accused ......................................................................... is
RULES OF PROCEDURE
Announcement of Finding(s)
The court being re-opened the accused is again brought before it.
The finding(s) (is) (are) read and (with the exception of the finding(s) of "not
guilty") (is) (are) announced as being subject to confirmation.
Proceedings on acquittal on all charges
The accused is released.
Signed at ....................... this ....................... day of ....................... .................
Judge Advocate
President
E
Page ........
Proceedings on plea(s) of guilty
The accused .........................................................................................................
is found guilty of
The finding(s) (is) (are) read in open court and (is) (are) announced as being
subject to confirmation.
The (summary) (abstract) of evidence is read to the court by the prosecutor,
marked, signed by the president or judge advocate and attached to the record.
or
The prosecutor informs the court of the facts contained in the (summary)
(abstract) of evidence which is marked ........ signed by the president or judge
advocate and attached to the record.
Page ........
Proceedings on conviction
Note: F2 should be completed before F1 if the accused has pleaded not guilty to
all charges. F1 should normally be completed before F2 if the accused has pleaded
guilty to any charge but the president may in his direction complete F2 before F1 if
there is no danger of the accused making an inconsistent plea.
Q.
Do you wish to give evidence yourself or to call other witnesses as to
your character or in mitigation of punishment?
A.
The evidence for the defence as to the accused’s character and in
mitigation of punishment, is recorded on pages........
Q.
Do you wish to address the court in mitigation of punishment?
A.
RULES OF PROCEDURE
The .................. (makes an address in mitigation of punishment, which is
summarised (below) (on page .....)) (han ds in an address in m itiga tion of
punishment, which is read, marked ...................., signed by the president or judge
advocate and attached to the record).
The list of offences which the court have, at the request of the accused, agreed to
take into consideration is read to the accused, signed by him, marked ........., signed
by the president or judge advocate and attached to the record.
Final question addressed to the accused personally.
Q.
Is there anything further that you wish to say to the court?
A.
{
*
The accused makes a statement which is recorded on page ..
The court close to deliberate on sentence.
* Strike out if F1 is complete before F2.
Page ........
Proceedings on conviction
Note: F2 should be completed before F1 if the accused has pleaded not guilty to
all charges.
The prosecutor calls evidence as to the accused’s character and record.
Q.
Do you produce the service record of the accused?
A.
I produce ...............................................................................................
Q.
Have you compared it with the service books?
A.
Q.
Do the entries on it correspond with the entries in the service books?
A.
The ............................................ is read, marked .........................................
signed by the president or judge advocate and attached to the record.
The accused (declines) (elects) to cross-examine this witness (and the cross-
examination is recorded on pages ...............).
The prosecutor adduces evidence under Rule of Procedure 68(3) which is recorded
on pages ............
Final question addressed to the accused personally.
Q.
Is there anything further that you wish to say to the court?
A.
The accused makes a statement which is recorded on page.......
The court close to deliberate on sentence.
* Strike out if F2 is completed before F1.
RULES OF PROCEDURE
G
Page ........
Sentence
The court sentence the accused .............................................................................
to .............................................................................................................................
Announcement of sentence
The court being re-opened, the accused is again brought before it.
The sentence (and recommendation to mercy) (is) (are) announced in open court;
the sentence is announced as being subject to confirmation.
The president announces that the trial is concluded.
Signed at .............................. this .......................day of ................. ..............
Judge Advocate
President
H
Page ........
Confirmation
(6)
Findings
Acquittal on all charges
not guilty of (the charge) (all the charges).
not guilty of (the charge) (all the charges), and honourably acquit him thereof.
Acquittal on some but not all charges
not guilty of the ............... charge(s) but is guilty of the .................. charge(s).
not guilty of the .................. charge (s) and honourably acquit him thereof but is
guilty of the ............... charge(s).
RULES OF PROCEDURE
Conviction on all charges
guilty of (the charge) (all the charges).
Special findings
guilty of the ................... charge (with the exception of the words .......................)
(with the exception that .................)
not guilty of the offence charged but guilty of .....................
No finding on alternative charge
guilty of the .......................... charge; the court record no finding on the
............................... (alternative) charge.
Where accused is unfit to stand his trial
Unfit to stand his trial
Acquittal by reason of insanity
not guilty by reason of insanity.
RULES OF PROCEDURE
(7) Record of reconsideration of finding under Rule 77(5)
The judge advocate advises the court that the finding(s) on the ..............................
charge(s) (is) (are) contrary to the law relating to the case, and that in his opinion the
following finding(s) (is) (are) open to them
The court is closed for reconsideration of finding.
The court on reconsideration find that the accused is .......................
The finding(s) on reconsideration (is) (are) read in open court and (with the
exception of the finding(s) of "not guilty") (is) (are) announced as being subject to
confirmation.
(8) Service record of accused
Service record of accused
Rank
Name
Regiment or Corps
1. He was enlisted on .......... .............. and commissioned on .....................
2. He is serving on a ...............................
3. His age is ................. years.
4. He is single/married/separated/ widowed and has ......... children under
the age of 16 years.
5. His gross rate of pay is ........... per day, but he is ................. .
6. His reckonable service towards discharge or transfer to the reserve is
................. years.
7. His reckonable service towards pension, gratuity, etc., is ........... years.
8. (i)
He is entitled to the following decorations and awards
(ii) The following acts of gallantry or distinguished conduct are
recorded in his conduct sheet
9. He holds the substantive rank of ................ with seniority from
................... ............ and has held the acting rank of .................
continuously since .................. ............. .
10. He has been awaiting trial for ............... days since he was first, in
connection with the matters for which he is before the court, charged or
placed in arrest, of which ............ days were spent in civil custody,
................. days were spent in close arrest and ................. days were
spent in open arrest.
11. (He is not now under sentence) (He is now under sentence of .................
beginning on ................. ................. but suspended on ................. and
(not yet put into operation again) (put into operation on .................
.................)).
12. According to his conduct sheets, he has been found guilty by his
commanding officer or by the commandant of a military establishment
of the following offences
In the last
During his
12 months
service
For
times
times
For
times
times
For
times
times
For
times
times
For
times
times
13. The details, according to his conduct sheets, of offences of which he has
been convicted by court-martial or of which he has been found guilty
during his service by a civil court, offences of which he has been found
guilty by an appropriate superior authority and of dispensations with
trials under article 87 of the Malta Armed Forces Act, are set out in the
Schedule hereto.
(9) Record of proceedings on revision under article 110 of the Act
At ....................... on the ....................... day of ......................... at .................
hours the court re-assembled by order of ............................. the confirming officer
for the purpose of re-considering their finding(s) on the....................... charge(s).
Present .................................................................................................................
The order directing the re-assembly of the court and giving the reasons therefor is
read, marked ....................... signed by the president and attached to the record.
This Schedule herein before referred to
Rank
Name
of
Regiment
or
Corps
Description of Date and place of
Charges on
Sentence or order
Punishment
court,
trial summary
which convicted of the court as
remitted on
appropriate
dealing, or of
or found guilty, confirmed, award
review or
superior
order dispensing offences taken
of appropriate
reconsideration
authority, or
with trial
into
superior
officer
consideration and authority or order
dispensing with
offences in
of the officer
respect of which dispensing with
trial was
trial
dispensed with
RULES OF PROCEDURE
I HEREBY CERTIFY that this form and schedule contain a summary of entries in
the service books relating to the accused.
Signed this ........................... day of ........................ ................
(Name, rank and appointment of officer signing)
The court having considered the observations of the confirming officer and the
whole of the record of the proceedings do now revoke their finding(s) on the
..................... charge(s) and find the accused ..................... is ..................... and
(adhere to their sentence) (sentence the accused to ....................................................
in substitution of the original sentence).
or
The c ourt hav ing co nsi dered the ob serv ati ons of t he confirm in g o ffic er
respectfully adhere to their finding(s) on the ..................... charge(s) (and to their
sentence) (but sentence the accused ..................... to ..................... in substitution
for the original sentence).
or
The court having considered the observations of the confirming officer and the
whole of the record of the proceedings do now revoke their finding(s) on the
..................... charges) and find the accused ..................... not guilty of (that) (those)
charge(s).
Signed at ..................... this ..................... day of ..................... ..................... .
Judge Advocate
President
(10) Confirmation
NOTE: These forms are for guidance only and do not constitute an exhaustive list
of all the possible variations and should be adapted to the circumstances of each
case.
Confirmed.
I confirm the court’s finding(s), sentence and order under article 142 of the Malta
Armed Forces Act, but (remit ..............) (commute ................).
I confirm the court’s finding(s), sentence and order under article 142 of the Malta
Armed Forces Act, but mitigate the sentence so that it shall be as follows -
RULES OF PROCEDURE
I vary the sentence so that it shall be as follows ........ and confirm the finding and
sentence as so varied.
I confirm the finding(s) and sentence but (postpone the carrying out of the
sentence of..................... until .....................) (suspend the sentence of ...................)
I confirm the finding(s) but substitute the sentence of .....................
....................for the sentence of the court.
I substitute a finding of ............................... for the finding of the court and
confirm the sentence but (remit)(commute..................... )
I substitute a finding of..................... for the finding of the court on the charge and
confirm the finding(s) of the court on the .....................charge(s) and the sentence.
Not confirmed (on the grounds that .....................)
I confirm the finding(s) of the court on the ................................. charge(s) but do
not confirm their finding(s) on the ..................... charge(s) (on the grounds that
..................... ). I confirm the sentence but (remit ..................... (commute
.....................)
I refer the finding(s) and sentence to ..................... for confirmation.
I confirm the finding(s) of the court on the .............................. charge(s) and refer
the finding(s) on the ..................... charge(s) and the sentence to ..................... for
confirmation.
I confirm the finding(s) of the court but refer the sentence to ............... for
confirmation.
(The record) (Part of the record) of the proceedings of the ..................... court-
martial which tried ..................... at ....................................on the ..................... day
of ............................. having been lost I do not confirm the finding(s) of the court.
RULES OF PROCEDURE
Signed at ..................... this ..................... day of ..................... ..................... .
(Signature, rank and appointment
of confirming officer)
(11) Determination by a confirming officer or reviewing authority of a suspended
sentence and direction that sentences are to run concurrently or consecutively.
I ........................ (the confirming officer) (the reviewing authority) hereby order
the accused to be committed to (imprisonment) (detention) under the sentence
passed on him by the court-martial held at ................... on the ................. day of
..................... and direct that that sentence and the sentence passed on the accused by
(this court-martial) (the court-martial held at a ..................... on the .....................
day of ......................... .................) shall run (concurrently) (consecutively).
(Date) .....................
(Signature) ............................
(12) Restitution order
In accordance with sub-article of article 142 of the Malta Armed Forces Act, I
hereby order that ..................... be (delivered) (paid) to ..................... .
(Date) .....................
(Signature) ........................................
(Confirming Officer)
(Reviewing authority)
(13) Promulgation
Promulgated and extracts taken at ........................... (place) ................. this
........................... day of ........................... .......... .
(Signature, rank and appointment of officer making the promulgation)
Amended by
An accused shall not be held in arrest for more than
seventy-two consecutive days without a court-martial being
convened for his trial, unless the officer who would be responsible
for convening the court-martial directs in writing that he shall not
be released from arrest. When giving such a direction such officer
shall state his reasons for giving it.
Investigation of charges by commanding officer
L.N. 101 of 1973.
(Rules 18 and 74)
Sentences
(1) Sentences.
(2) Forfeiture of seniority of rank.
(3) Determination of a suspended sentence and direction that sentences are
to run concurrently or consecutively.
(4) Restitution order.
(1) Sentences
Note: The words in the margin should be entered in the right-hand
margin of the record of the proceedings of a court-martial opposite the
record of the sentence.
Officers
To suffer imprisonment for life.
Imprisonment
for life
To be imprisoned for .............. and to be cashiered.
Imprisonment
and cashiering
To be cashiered.
Cashiering.
To be dismissed from the service.
Dismissal.
(For form of sentence see (2) below).
Forfeiture of
seniority of
rank.
To be fined .....................
Fine.
To be (severely reprimanded) (reprimanded).
(Severe
reprimand)
(Reprimand).
To be put under stoppages of pay until he has made good
Stoppages.
the sum of ............. in respect of ...................... .
RULES OF PROCEDURE
Warrant officers and non-commissioned officers
in the Armed Forces of Malta
To suffer imprisonment for life.
Imprisonment
for life
To be imprisoned for ....................... and to be reduced to
Imprisonment
and reduction
the ranks.
to the ranks.
To be dismissed with disgrace from the service.
Dismissal with
disgrace.
To be dismissed from the service.
Dismissal.
To undergo detention for .................. and reduced to the
Detention and
reduction to
ranks.
the ranks.
To undergo field punishment for .............. days and to be
Field
punishment
reduced to the ranks.
and reduction
to the ranks.
Dismissal from
To be dismissed from the Territorial Reserve (non-
the Territorial
commissioned officers of the Territorial Reserve only).
Reserve.
To be reduced (to the ranks)(to the rank of ...........)
(Reduction to
the ranks).
(Reduction to
..............).
Forfeiture of
(For forms of sentences see (2) below).
seniority of
rank.
Forfeiture of
To forfeit ................... service.
service.
To forfeit ................ days pay.
Forfeiture of
pay.
RULES OF PROCEDURE
Fine.
To be fined .....................
To be (severely reprimanded) (reprimanded).
(Servere
reprimand)
(Reprimand).
To be put under stoppages of pay until he has made good
Stoppages.
the sum of .............. in respect of ............. .
Soldiers
To suffer imprisonment for life.
Imprisonment
for life
To be imprisoned for ................
Imprisonment.
Dismissal with
To be dismissed with disgrace from the service.
disgrace.
Dismissal.
To be dismissed from the service.
To undergo detention for ................ .
Detention.
To undergo field punishment for .................. days.
Field
punishment.
To be dismissed from the Territorial Reserve (men of the
Dismissal from
the Territorial
Territorial Reserve only).
Reserve.
To forfeit ................ service.
Forfeiture of
service.
To forfeit ..........days’ pay.
Forfeiture of
pay.
To be fined ..................... .
Fine.
RULES OF PROCEDURE
To be put under stoppages of pay until he has made good
Stoppages.
the sum of ............. in respect of .................
(2) Forfeiture of seniority of Rank
Officers
To take seniority in the rank of ........ in the force and in his corps as if his
appointment to that rank bore date the ................. day of .................. or where the
officer’s rank of seniority in the force and rank or seniority in his corps differ
To take seniority in the rank of .......... in the force as if his appointment to that
rank bore date the ................ day of ................. ................. and to take seniority in
the rank of ................. in his corps as if his appointment to that rank bore date the
...................................... day of ................. .
Warrant officers and non commissioned officers in the Armed Forces of Malta
To take seniority in the rank of ................. as if his appointment to that rank bore
the date the ................. day of ................. ................. .
or
To take seniority in the rank of .................................. as if his name appeared next
below .................................. in the .................................. promotion roll serial No.
................. dated the ................. day of ................., ................. .
(3) Determination of a suspended sentence and direction that
sentences are to run concurrently or consecutively
The court hereby order the accused to be committed to (imprisonment) (detention)
under the sentence passed on him by the court-martial held at ................. on the
................. day of ................. ........... and direct that that sentence and the sentence
passed on the accused by this court-martial shall run (concurrently) (consecutively).
(4) Restitution order
In accordance with sub-article ...... of article 142 of the Malta Armed Forces Act,
the court hereby order that ...............be (delivered) (paid) to ................. .
RULES OF PROCEDURE
(1) Subject to sub-rules (3) and (4), when a commanding
officer investigates a charge he shall first read and, if necessary,
explain the charge to the accused and shall then -
(a) hear the evidence himself in accordance with rule 7; or
(b) cause the evidence to be reduced in writing in
accordance with sub-rule (2), and read and consider it
Provided that
(a) notwithstanding that he has heard all or part of the
evidence himself, he may cause the evidence to be
reduced to writing;
(b) after the evidence has been reduced to writing and he
has considered it, he may himself hear evidence in
accordance with rule 7; and
(c) before he submits to higher authority a charge against
an officer or warrant officer or a civilian to whom
Parts III and IV of the Act are applied by article 179 of
the Act or remand a non-commissioned officer or
soldier for trial by court-martial he shall cause the
evidence to be reduced to writing.
(2) Evidence may be reduced to writing in the form of a
summary of evidence taken in accordance with rule 8 or an abstract
of evidence made in accordance with rule 9
Provided that a summary or evidence must be taken if -
(a) the maximum punishment for the offence with which
the accused is charged is imprisonment for life; or
(b) the accused, at any time before the charge against him
is referred to higher authority in accordance with rule
11, requires in writing that a summary of evidence be
taken; or
(c) the commanding officer is of the opinion that the
interests of justice require that a summary of evidence
be taken.
(3) Where the evidence taken in accordance with sub-rule (1)
discloses an offence other than the offence which is the subject of
the investigation, a new charge alleging that offence may be
preferred against the accused in addition to, or in substitution for,
the original charge and the investigation of the original charge may
be treated, for the purposes of these Rules, as the investigation of
the added or substituted charge.
(4) Where a civilian, to whom Parts III and IV of the Act are
applied by article 179 of the Act, is charged with an offence with
which an appropriate authority can deal summarily, it shall not be
necessary for his commanding officer to read the charge to the
accused; but it shall be a sufficient compliance with the provisions
of this rule if his commanding officer causes to be delivered to the
accused a copy of the charge and of the abstract of evidence and
considers them together with any statement made by the accused
under rule 9(2).
(Rule 32)
Oaths and affirmations
(1) Oaths at investigations by commanding officers and appropriate
superior authorities.
(2) Oaths at courts-martial.
(3) Manner of administering oaths.
(4) Solemn affirmations.
(1) Oaths at investigations by commanding officers and appropriate
superior authorities.
Interpreter
I swear by Almighty God that I will to the best of my ability interpret and translate
as I shall be required to do touching the matter being investigated.
Witness
I swear by Almighty God that the evidence which I shall give at this investigation
shall be the truth, the whole truth and nothing but the truth.
Child or young person
I promise before Almighty God that the evidence which I shall give at this
investigation shall be the truth, the whole truth and nothing but the truth.
(2) Oaths at courts-martial
President and members
I swear by Almighty God that I will well and truly try the (accused) (accused
persons) before the court according to the evidence and that I will duly administer
justice according to the Malta Armed Forces Act, without partiality, favour or
affection, and I do further swear that I will not on any account at any time
whatsoever disclose or discover the vote or opinion of the president or any member
of this court-martial, unless thereunto required in due course of law.
Judge Advocate
I swear by Almighty God that I will to the best of my ability carry out the duties of
judge advocate in accordance with the Malta Armed Forces Act, and the rules made
thereunder and without partiality, favour or affection, and do further swear that I will
not on any account at any time whatsoever disclose or discover the vote or opinion
on any matter of the president or any member of this court-martial, unless thereunto
required in due course of law.
RULES OF PROCEDURE
Officer under instruction
I swear by Almighty God that I will not on any account at any time whatsoever
disclose or discover the vote or opinion of the president or any member of this court-
martial, unless thereunto required in due course of law.
Shorthand writer
I swear by Almighty God that I will truly take down to the best of my power the
evidence to be given before this court-martial and such other matters as may be
required, and will, when required, deliver to the court a true transcript of the same.
Interpreter
I swear by Almighty God that I will to the best of my ability truly interpret and
translate, as I shall be required to do, touching the matter before this court-martial.
Witness
I swear by Almighty God that the evidence which I shall give before this court-
martial shall be the truth, the whole truth, and nothing but the truth.
Child or young person
I promise before Almighty God that the evidence which I shall give before this
court-martial shall be the truth, the whole truth and nothing but the truth.
(3) Manner of Administering oaths
Christians taking the oath shall, unless female, remove their head-dress and,
holding the Cross or the Bible or New Testament (according to their beliefs) in their
right hand, say to or repeat after the person administering the oath the words of the
oath. Jews shall take the oath in the same manner except that they shall wear their
head-dress and hold the Old Testament in their right hand.
(4) Solemn affirmations
The person making a solemn affirmation shall say to or repeat after the person
administering the solemn affirmation the words of the appropriate form of oath
except that for the words "I swear by Almighty God" he shall substitute the words "I
(name in full) do solemnly, sincerely and truly declare and affirm" and for the word
"swear" wherever it occurs the words "solemnly, sincerely and truly declare and
affirm".
RULES OF PROCEDURE
When a commanding officer investigates a charge by
hearing the evidence himself
(a) each prosecution witness shall give his evidence orally
in the presence of the accused, or the commanding
officer shall read to the accused a written statement
made by the witness
Provided that a written statement of a prosecution
witness shall not be used if the accused requires that
the witness shall give his evidence orally;
(b) the accused shall be allowed to cross examine any
prosecution witness;
(c) the accused may, on his own behalf, give evidence on
oath or may make a statement without being sworn;
(d) the accused may call witnesses in his defence, who
shall give evidence orally and in his presence;
(e) the evidence shall not be given on oath unless the
commanding officer so directs or the accused so
demands;
(f)
if the evidence is given on oath, the commanding
officer shall, subject to the accused’s rights to make a
statement without being sworn, administer the oath to
each witness and to any interpreter in accordance with
rule 32.
(Rule 97)
Petitions
Petition to confirming officer (before confirmation)
To the confirming officer.
I .......................... having been convicted by a court-martial on ..................... at
.......................... and having been sentenced to ................ hereby petition against
the finding(s) on the ...................... charge(s) and the sentence on the following
grounds
-
Signed ............................................
Dated ............................................
Appeal petition to the Commander (after promulgation)
To the Commander
I ........ having been convicted by court-martial on ........... at . ............. and having
had the finding(s) and sentence promulgated to me on ...................... hereby petition
against the finding(s) on the ...................... charge(s) (and the sentence) on the
following grounds: ...................................................................................................
Signed ............................................
Dated ............................................
Petition to reviewing authority (after promulgation)
To .............................
I .......... having been convicted by court-martial on . ......... at .......... and having
been sentenced .................................. and having had the finding(s) and sentenced
promulgated to me on ............... hereby petition against the finding(s) on the
..................... charge(s) and sentence on the following grounds: ..............................
Signed ............................................
Dated ............................................
A summary of evidence shall be taken in the following
manner and shall be in accordance with the form set out in the First
Schedule
(a) it shall be taken in the presence of the accused by the
commanding officer or by another officer on the
direction of the commanding officer;
(b) the prosecution witnesses shall give their evidence
orally and the accused shall be allowed to cross-
examine any prosecution witness
Provided that, if a person cannot be compelled to
attend as a prosecution witness or if, owing to the
exigencies of the service or on other grounds
(including the expense and loss of time involved), the
attendance of any prosecution witness cannot, in the
opinion of the officer taking the summary (to be
certified by him in writing), be readily procured, a
written statement of his evidence, purporting to be
RULES OF PROCEDURE
signed by him, may be read to the accused and
included in the summary of evidence; but, if such
witness can be compelled to attend, the accused may
insist that he shall attend for cross-examination;
(c) after all the evidence against the accused has been
given, the accused shall be asked
"Do you wish to say anything? You are not
obliged to do so, but, if you wish, you may give
evidence on oath, or you may make a statement
without being sworn. Any evidence you give or
statement you make will be taken down in writing and
may be given in evidence."
Any evidence given or statement made by the
accused shall be recorded in writing and, immediately
thereafter, the record of his evidence or statement shall
be read over to him and corrected where necessary, and
he shall sign it unless he declines to do so;
(d) the accused may call witnesses in his defence, who
shall give their evidence orally;
(e) neither the accused nor the witnesses for the defence
shall be subject to cross-examination;
(f)
the evidence of each witness (other than the accused)
who gives evidence orally shall be recorded in writing
and, immediately thereafter, the record of his evidence
shall be read over to him, corrected where necessary
and signed by him;
(g) the record of evidence may be in narrative form, save
that any question put to a witness in cross-examination
by the accused and the answer thereto, shall be
recorded verbatim if the accused so requires;
(h) the oath shall be administered in accordance with rule
32 by the officer taking the summary of evidence to
each witness, before he gives his evidence, and to any
interpreter
Provided that, where any child of tender years,
called as a witness, does not, in opinion of the officer
taking the summary, understand the nature of an oath,
his evidence may be received, though not given upon
oath, if, in the opinion of the officer taking the
summary, he is possessed of sufficient intelligence to
justify the reception of the evidence and understands
the duty of speaking the truth; and
(i)
at the conclusion of the taking of the summary of
evidence, the officer taking it shall certify thereon that
he has complied with the provisions of this rule.
(1) An abstract of evidence shall be made in the following
way and shall be in accordance with the form set out in the First
Schedule
(a) it shall be made by the commanding officer or by
another officer on the direction of the commanding
officer;
(b) the accused should not be present while the abstract of
evidence is being made;
(c) it shall consist of signed statements by such witnesses
as are necessary to prove the charge
Provided that if, in the case of any witness, a
signed statement is not readily procurable, a precis of
the evidence to be given by that witness may be
included instead of a signed statement; and
(d) an oath shall not be administered to a witness making a
statement for inclusion in an abstract of evidence, but
use may be made, where necessary, of sworn
statements which are already in existence.
(2) When an abstract of evidence has been made in accordance
with sub-rule (1), a copy of it shall be handed to the accused and he
shall then be cautioned in the following terms
"This is a copy of the abstract of evidence in your case; you
are not obliged to say anything with regard to it unless you wish to
do so, but you should read it and, when you have read it, if you
wish to say anything, what you say will be taken down in writing
and may be given in evidence".
Any statement made by the accused after he has read the
abstract of evidence shall be taken down in writing and he shall be
asked to sign it. This statement, and a certificate by the person who
recorded the statement stating that the accused was duly cautioned
in accordance with this rule, shall be attached to the abstract of
evidence and shall thereafter form part of it. This certificate shall
be in the form set out in the First Schedule.
Before a commanding officer deals summarily with a
charge after the evidence has been reduced to writing -
(a) any prosecution witness who has not given his
evidence orally shall do so if the accused requires it;
and
(b) the commanding officer shall give the accused a
further opportunity to give evidence on oath or to
make a statement without being sworn and to call
witnesses in his defence.
(1) When a commanding officer submits to higher
authority a charge against an officer or warrant officer or a civilian
to whom Parts III and IV of the Act are applied by article 179 of the
Act or has remanded a non-commissioned officer or soldier for trial
by court-martial, he shall send to higher authority -
(a) a copy of the charge on which the accused is held;
(b) a draft charge-sheet containing the charges upon which
the commanding officer considers that the accused
should be dealt with summarily or tried by court-
martial;
(c) the summary or abstract of evidence;
(d) a statement of the character and service record of the
accused; and
(e) a recommendation as to how the charge should be
proceeded with.
(2) After a commanding officer has referred a charge to higher
authority in accordance with sub-rule (1) he shall not dismiss it
unless it has been referred back to him.
Preparation of charge sheets and framing of charges
(1) A charge sheet shall contain the whole of the issue or
issues to be tried at one time and may contain more than one charge
if the charges are founded on the same facts or form or are part of a
series of offences of the same or similar character
Provided that charges under article 50(1)(a), article
51(1)(a), article 59(a) and (c) (where the charge is connected with a
charge under either of the before-mentioned paragraphs) or article
63 of the Act may be included in any charge-sheet, notwithstanding
that other charges in that charge-sheet are not founded on the same
facts and do not form or are not part of a series of offences of the
same or similar character.
(2) Every charge-sheet shall in its layout follow
the
appropriate illustration given in the Second Schedule.
(3) The commencement of each charge-sheet shall be in the
appropriate form set out in the Second Schedule and shall state the
number, rank, name and unit of the accused and show by the
description of the accused or directly by an express averment that
he is subject to military law or otherwise liable to trial by court-
martial.
(1) Each charge shall state one offence only.
(2) Offences may be charged in the alternative in separate
charges but in no case shall they be charged in the alternative in the
same charge; when charges are laid in the alternative they should
be set out in order of gravity commencing with the most serious.
(3)
Each charge shall consist of two parts, namely
(a) the statement of the offence; and
(b) the particulars of the act, neglect or omission
constituting the offence.
(4) The statement of an offence, if it is not a civil offence,
shall be in the appropriate form set out in the Second Schedule; if it
is a civil offence in such words as sufficiently describe that offence.
(5)
The particulars shall state -
(a) such circumstances respecting the alleged offence as
will enable the accused to know every act, neglect or
omission which it is intended to prove against him as
constituting the offence;
(b) when the offence charged is one which can be
committed either in circumstances involving a higher
degree of punishment or in circumstances involving a
less degree of punishment, facts which it is intended to
prove as rendering the accused liable to the higher
degree of punishment if convicted; and
(c) any additional facts which it is intended to prove as
rendering the accused liable to the punishment of
stoppages if convicted.
(1) Any number of accused may be charged in the same
charge-sheet with offences alleged to have been committed by them
separately if the acts on which the charges are founded are so
connected that it is in the interests of justice that they be tried
together.
(2)
(a) Any number of accused may be charged jointly in one
charge for an offence alleged to have been committed
by them jointly.
(b) Where so charged any one or more of such accused
may at the same time be charged in the same charge-
sheet with any other offence alleged to have been
committed by him or them individually or jointly,
provided that such charges could, if the accused to
whom they relate had been tried separately, have been
included under rule 12(1) in the same charge sheet as
the other charges against him.
In the construction of a charge-sheet there shall be
presumed in favour of supporting it every proposition which may
reasonably be presumed to be impliedly included, though not
expressed therein, and the statement of the offence and the
particulars of the offence shall be read and construed together.
Action by higher authority on receipt of charge
When a higher authority receives a charge against an
accused, he shall, if he does not refer it back to the commanding
officer or deal summarily with it himself or himself convene a
court-martial to try the accused, refer the charge either to an
appropriate superior authority in order that that authority may deal
summarily with it or to the officer who would be responsible for
convening the appropriate court-martial to try the accused, and
shall, when he so refers the charge, send to the appropriate superior
authority or other officer concerned the documents mentioned in
rule 11 together with his own recommendation as to how the case
should be proceeded with.
Investigation of, and summary dealings with, charges by an
appropriate superior authority
An appropriate superior authority shall ensure before
investigating and dealing summarily with a charge that the accused
is given, not less than twenty-four hours before the charge is so
investigated and dealt with, a copy of the charge-sheet containing
the charge upon which he will be so dealt with and a copy of the
summary or abstract of evidence.
RULES OF PROCEDURE
When an appropriate superior authority investigates and
deals summarily with a charge
(a) he shall first read the charge to the accused;
(b) the witnesses against the accused need not give their
evidence orally if the accused has so agreed in writing,
but if the accused has not so agreed they shall give
their evidence orally in his presence and he shall be
allowed to cross-examine them. If the witnesses
against the accused do not give their evidence orally
the appropriate superior authority shall read the
summary or abstract of evidence to the accused if he
so requires;
(c) the accused in his defence may adduce evidence as to
the facts of the case and as to his character and in
mitigation of punishment;
(d) the accused himself may give evidence on oath, make
a statement without being sworn or hand in a written
statement;
(e) each witness who gives evidence shall give it on oath
and the oath shall be administered by the appropriate
superior authority to each witness and to any
interpreter in accordance to rule 32;
(f)
when an appropriate superior authority awards the
punishment of forfeiture of seniority of rank the award
shall be in the appropriate form set out in the Fifth
Schedule;
(g) a record shall be made of the proceedings in
accordance with the form set out in the Third
Schedule.
An appropriate superior authority shall, if an accused
elects to be tried by court-martial or the appropriate superior
authority in the course of investigating a charge determines that it
is desirable that the charge should be tried by court-martial, either
himself convene the court-martial or refer the charge to higher
authority in accordance with rule 16.
Convening of courts-martial
(1) Subject to sub-rules (2) and (3), when an officer
convenes a court-martial he shall
(a) issue a convening order in the appropriate form set out
in the Fourth Schedule;
(b) direct upon what charges the accused is to be tried and
ensure that the accused has been remanded for trial by
court-martial upon those charges either by his
commanding officer or by the appropriate superior
authority who has investigated them;
(c) if he is of the opinion that charges should be put in
separate charge-sheets, so direct and direct the order in
which they are to be tried;
(d) direct, if there is more than one accused, whether the
accused are to be tried jointly or separately;
(e) appoint the president and members of the court and
any waiting members in accordance with rule 21;
(f)
if convening -
(i) a general court-martial; or
(ii) a district or field general court martial at which
he considers there should be a judge advocate,
take the necessary steps to procure the appointment of
a judge advocate by or on behalf of the Attorney
General, and failing such appointment, himself appoint
a suitable person so to act;
(g) appoint an officer subject to military law or counsel
assisted by such an officer to prosecute or detail a
commanding officer to appoint an officer subject to
military law to prosecute
Provided that the convening officer may appoint
two such officers to prosecute if he thinks fit;
(h) appoint the date, time and place for the trial;
(i)
send to the president the charge-sheet, the convening
order and a copy of the summary or abstract of
evidence from which any evidence which in his
opinion would be inadmissible under the Act at the
court-martial has been expurgated;
(j)
send to each member of the court and to each waiting
member a copy of the charge-sheet;
(k) send to the prosecutor copies of the charge-sheet and
convening order and the original summary or abstract
of evidence together with an unexpurgated copy
thereof showing the passages (if any) which have been
expurgated in the copy sent to the president;
(l)
send to the judge advocate (if any) copies of the
charge-sheet and convening order and an unexpurgated
copy of the summary or abstract of evidence showing
the passages (if any) which have been expurgated in
the copy sent to the president;
(m) ensure that the accused is given a proper opportunity
to prepare his defence in accordance with rule 23; and
(n) take steps in accordance with rule 88 to procure the
attendance at the court-martial of all witnesses to be
called for the prosecution and all witnesses whose
attendance the accused has reasonably requested in
accordance with rule 23
Provided that the convening officer may require
the accused to defray or to undertake to defray, as the
convening officer thinks fit, the cost of the attendance
of a witness whose attendance he has requested and if
the accused refuses to defray or to undertake to defray,
as the case may be, such cost, the convening officer
shall not be obliged to take any further steps to procure
the attendance of that witness.
(2) When an officer convenes a field general court-martial he
shall not be obliged to comply with sub-rule (1)(g), (i) (in so far as
it relates to the copy of the summary or abstract of evidence sent to
the president being expurgated), (j), (k) and (l), if, in his opinion, it
is impracticable to do so.
(3) When an officer convenes a court-martial consequent on an
order for a retrial made under the provisions of the Criminal Code
as applied by article 116(2) of the Act, by the Court of Criminal
Appeal -
(a) sub-rule (1)(b) shall not apply but the convening
officer shall direct that a charge-sheet shall be
prepared in accordance with the provisions of article
496 of the said Code and with any directions which
may have been given by the Court of Criminal Appeal,
and that the accused shall be tried on the charge in that
charge sheet;
(b) when it is proposed to tender any evidence given by
any witness at the original trial as evidence at the
retrial in accordance with the provisions of article
508(6) of the Code aforesaid the convening officer
shall send to the accused as soon as practicable and in
any case not less than twenty-four hours before his
trial and also to the president, the judge advocate (if
any) and the prosecutor a copy on any such evidence.
The convening officer shall -
(a) appoint the president of a court-martial by name and
appoint the members either by name, or by detailing a
commanding officer to appoint an officer of a
specified rank; and
(b) appoint such waiting members as he thinks expedient
either by name or by detailing a commanding officer to
appoint an officer of a specified rank.
(1) Subject to rule 78, any officer subject to military law
may, by direction of the convening officer or at the discretion of the
president, remain with a court-martial throughout the proceedings
as an officer under instruction.
(2) An officer under instruction, although allowed to be present
in closed court, shall take no part in any of the deliberations or
decisions of the court.
(1) Subject to sub-rule (2) -
(a) an accused who has been remanded for trial by court-
martial shall be afforded a proper opportunity for
preparing his defence and shall be allowed proper
communication with his defending officer or counsel
and with his witnesses;
(b) a defending officer or counsel shall be appointed to
defend an accused who has been remanded for trial by
court-martial unless the accused states in writing that
he does not wish an appointment to be made;
(c) if the prosecution is to be undertaken by a legally
qualified officer or by counsel, the accused shall be
notified of this fact in sufficient time to enable him, if
he so desires and it is practicable, to make
arrangements for a legally qualified officer or counsel
to defend him;
(d) as soon as practicable after an accused has been
remanded for trial by court-martial and in any case not
less than twenty-four hours before his trial, he shall be
given
(i) a copy of the charge-sheet;
(ii) an unexpurgated copy of the summary or
abstract of evidence showing the passages (if
any) which have been expurgated in the copy
sent to the president;
(iii) notice of any additional evidence which the
prosecution intends to adduce; and
(iv) if the accused so requires, a list of the ranks,
names, and units of the president and members
who are to form the court and of any waiting
members;
(e) when an accused is given a copy of the charge-sheet
and of the summary or abstract of evidence in
accordance with this rule, he shall -
(i)
if necessary, have the charge explained to him,
and
(ii) be informed that, upon his making a written
request to his commanding officer not less than
twenty-four hours before his trial requiring the
attendance at his trial of any witness (other than
a witness for the prosecution) whom he desires
to call in his defence (such witness to be named
by him), reasonable steps will be taken in
accordance with these Rules to procure the
attendance of any such witness at his trial;
(f)
when an accused is served with a copy of a written
statement which the prosecutor proposes to hand to the
court and the accused is entitled to require that oral
evidence shall be given in lieu of such written
evidence, he shall be informed of his rights to require
that oral evidence shall be given in lieu of such written
evidence;
(g) when it is intended to try two or more accused jointly,
notice of this fact shall be given to each such accused
when he is given a copy of the charge-sheet. Any such
accused may, before trial, by written notice to the
convening officer, claim to be tried separately on the
ground that he would be prejudiced in his defence if he
were not tried separately. In such case the convening
RULES OF PROCEDURE
officer shall, if he is of the opinion that the interests of
justice so require, direct that the accused who has so
claimed shall be tried separately;
(h) when a charge-sheet contains more than one charge,
the accused may, before trial, by written notice to the
convening officer claim to be tried separately on any
charge in that charge-sheet on the ground that he
would be prejudiced in his defence if he were not tried
separately on that charge, and in such case the
convening officer shall, if he is of the opinion that the
interests of justice so require, direct that the accused
shall be tried separately on that charge.
(2) In the case of a field general court martial the provisions of
sub-rule (1) need not be complied with so far as it is practicable to
do so.
Assembly and swearing of court
(1) Upon a court-martial assembling, the court shall,
before beginning the trial, satisfy themselves in closed court
(a) that the court has been convened in accordance with
the Act and these Rules;
(b) that the court consists of not less than the legal
minimum of officers;
(c) that the president and members are of the required
rank;
(d) that the president and members have been duly
appointed and are not disqualified under the Act;
(e) if there is a judge advocate, that he has been duly
appointed;
(f)
that the accused appears from the charge sheet to be
subject to military law or otherwise liable to trial by
court-martial and to be subject to the jurisdiction of
the court; and
(g) that each charge is on its facts correct in law and
framed in accordance with these Rules.
(2)
(a) Where a vacancy occurs through a member of the court
being disqualified under the Act or being absent when
the court assembles, the president may appoint a duly
qualified waiting member to fill that vacancy.
(b) The president may, if the interests of justice so require,
substitute a duly qualified waiting member for a
member appointed by the convening officer.
(3) If the court is not satisfied on any of the matters mentioned
in sub-rule (1), and is not competent to rectify such matter itself
under the Act or these Rules, it shall, before commencing the trial,
report to the convening officer thereon.
(4) When the court has complied with this Rule and is ready to
proceed with the trial, the president shall open the court and the
trial shall begin.
(1) The order convening the court and the names of the
officers appointed to try the accused shall be read in the hearing of
the accused who shall be given an opportunity to object to any of
those officers in accordance with article 98 of the Act.
(2) When a court is convened to try more than one accused
whether separately or jointly, each accused shall be given an
opportunity to object to any officer of the court in accordance with
the preceding sub-rule and shall be asked separately whether he has
any such objection.
(3) An accused shall state the names of all the officers to
whom he objects before any objection is disposed of.
(4) If more than one officer is objected to, the objection to
each officer shall be disposed of separately and the objection to the
lowest in rank shall be disposed of first, except where the president
is objected to, in which case the objection to him shall be disposed
of before the objection to any other officer.
(5) An accused may make a statement and call any person to
make a statement in support of his objection.
(6) An officer to whom the accused has objected may state in
open court anything relevant to the accused’s objection whether in
support or in rebuttal thereof.
(7) An objection to an officer shall be considered in closed
court by all the other officers of the court including any officer who
has been appointed by the president in accordance with sub-rule (9)
in place of an officer who has retired.
(8) When an objection to an officer is allowed that officer shall
forthwith retire and take no further part in the proceedings.
(9) When an officer objected to (other than the president)
retires and there is a duly qualified waiting member in attendance,
the president should immediately appoint him to take place of the
officer who has retired.
(10) The court shall satisfy themselves that a waiting member
who takes the place of a member of the court is of the required rank
and not disqualified under the Act and shall give the accused an
opportunity to object to him and shall deal with any such objection
in accordance with this rule.
(11) If an objection to the president is allowed the court shall
report to the convening officer without proceeding further with the
trial.
(12) If as the result of the allowance of an objection to a
member there are insufficient officers available to form a court in
compliance with the Act the court shall report to the convening
officer without proceeding further with the trial and the convening
officer may either appoint an officer as a member to fill the
vacancy or convene a fresh court to try the accused.
(1) Immediately after rule 25 has been complied with, an
oath shall be administered to the president an each member of the
court in accordance with rule 32 and in the presence of the accused.
(2) If there is a judge advocate, the oath shall be administered
by him to the president first and afterwards to each member of the
court. If there is no judge advocate, the oath shall be first
administered by the president to the members of the court and then
to the president by any member of the court already sworn.
(3) A court may be sworn at one time to try any number of
accused then present before it, whether they are to be tried jointly
or separately.
(4) When a court is convened to try two or more accused
separately and one accused objects to the president or to any
member of the court, the court may, if they think fit, proceed to
determine that objection in accordance with rule 25, or postpone
the trial of that accused and swear the court for the trial of the other
accused only.
After the court have been sworn, an oath shall be
administered to the judge advocate (if any) in accordance with rule
32 and in the presence of the accused.
After the court and judge advocate (if any) have been
sworn an oath shall be administered to any officer under instruction
in accordance with rule 32 and in the presence of the accused.
(1) A competent and impartial person may be appointed at
any time to act as an interpreter or shorthand writer at a trial by
court-martial and before he so acts an oath shall be administered to
him in accordance with rule 32 and in the presence of the accused.
(2) Before a person is sworn as an interpreter or as a shorthand
writer, the accused shall be given an opportunity to object to him in
the same manner as an objection may be taken to a member of the
court and, if the court think that the objection is reasonable, that
person shall not act as interpreter or shorthand writer.
The accused shall have no right to object to a judge
advocate, prosecutor or any officer under instruction.
(1) When a court has been convened to try two or more
accused separately and have been sworn in accordance with rule
26(3), the court shall try them in the order indicated by the
convening officer or, where he has given no such indication, then in
such order as the court think fit.
(2) When a court has been convened to try an accused on
charges which are included in more than one charge-sheet, the
court shall take the charge sheets in the order indicated by the
convening officer or, where he has given no such indication, in
such order as they think fit.
(1) An oath which is required to be administered under
these Rules shall be administered in the appropriate form and in the
manner set out in the Sixth Schedule
Provided that the opening words of the oath may be varied
to such words and the oath may be administered in such manner as
the person taking the oath declares to be binding on his conscience
in accordance with his religious beliefs.
(2) Subject to rule 26(2) every oath shall be administered at a
court-martial by the president, a member of the court or the judge
advocate.
(3) Where a person is a child or young person the oath shall be
in the appropriate form set out in the Sixth Schedule.
(4) Where a person is permitted to make a solemn affirmation
instead of swearing an oath, the affirmation shall be in the
appropriate form set out in the Sixth Schedule.
(5) The provisions of the Affirmations Act shall apply to
proceedings before a commanding officer, the taking of summaries
of evidence and proceedings before an appropriate superior
authority as they apply to proceedings before a court-martial.
(1) When the court and judge advocate (if any) have been
sworn the accused shall be arraigned.
(2) If there is more than one charge against the accused before
the court he shall be required to plead separately to each charge.
(3) If there is more than one charge-sheet against the accused
before the court, the court shall arraign and try the accused upon
the charge in the first of such charge-sheets and shall announce
their finding thereon and if the accused has pleaded guilty comply
with rule 43(1) and (2) before they arraign him upon the charge in
any subsequent charge-sheet.
(1) The accused, before pleading to the charge, may offer
a plea of jurisdiction of the court. If he does so -
(a) the accused may adduce evidence in support of the
plea and the prosecutor may adduce evidence in
answer thereto;
(b) the prosecutor may address the court in answer to the
plea and the accused may reply to the prosecutor’s
address.
(2) If the court allow the plea they shall adjourn and report to
the convening officer.
(3) When a court report to the convening officer under this
rule, the convening officer shall -
(a) if he approves the decision of the court to allow the
plea, dissolve the court;
(b) if he disapproves the decision of the court -
(i)
refer the matter back to the court and direct them
to proceed with the trial; or
(ii) convene a fresh court to try the accused.
(1) An accused before pleading to a charge may object to
it on the grounds that it is not correct in law or is not framed in
accordance with these Rules, and if he does so, the prosecutor may
address the court in answer to the objection and the accused may
reply to the prosecutor’s address.
(2) If the court uphold the objection, they shall either amend
the charge, if permissible under rule 80, or adjourn and report to the
convening officer
Provided that if there is another charge or another charge-
sheet before the court, the court may, before adjourning under this
rule, proceed with the trial of such other charge or other charge-
sheet.
(3) When a court report to the convening officer under this
rule, the convening officer shall -
(a) if he approves the decision of the court to allow the
objection -
(i) dissolve the court; or
(ii) where there is another charge or another charge-
sheet before the court to which the objection
does not relate and which the court has not tried,
direct the court to proceed with the trial of such
other charge or charge sheet only; or
(iii) amend the charge to which the objection relates
if permissible under rule 81, and direct the court
to try it as amended;
(b) if he disapproves the decision of the court to allow the
objection -
(i) direct the court to try the charge; or
(ii) where there is another charge or another charge-
sheet before the court to which the objection
does not relate and which the court has not tried,
direct the court to proceed with the trial of such
other charge or charge-sheet only; or
(iii) convene a fresh court to try the accused.
(1) An accused before pleading to a charge, may offer a
plea in reliance upon bar of article 131 or article 133 of the Act. If
he does so -
(a) the accused may adduce evidence in support of the
plea and the prosecutor may adduce evidence in
answer thereto; and
(b) the prosecutor may address the court in answer to the
plea and the accused may reply to the prosecutor’s
address.
(2) If the court allow the plea they shall adjourn and report to
the convening officer
Provided that if there is another charge or another charge-
sheet before the court, the court may, before adjourning under this
rule, proceed with the trial of such other charge or other charge-
sheet.
(3) When a court report to the convening officer under this
rule, the convening officer shall -
(a) if he approves the decision of the court to allow the
plea -
(i) dissolve the court; or
(ii) where there is another charge or another charge-
sheet before the court to which the plea does not
relate and which the court has not tried, direct
the court to proceed with the trial of such other
charge or charge-sheet only;
(b) if he disapproves the decision of the court to allow the
plea -
(i) direct the court to try the charge; or
(ii) where there is another charge or another charge-
sheet before the court to which the plea does not
relate and which the court has not tried, direct
the court to proceed with the trial of such other
charge or charge-sheet only;
(iii) convene a fresh court to try the accused.
Where two or more accused are charged jointly or are
charged in the same charge-sheet with offences alleged to have
been committed by them separately, any one of the accused may,
before pleading to a charge or charges, apply to the court to be tried
separately on the ground that he would be prejudiced in his defence
if he were not tried separately. If the accused makes such an
application the prosecutor may address the court in answer thereto
and the accused may reply to the prosecutor’s address. If the court
are of the opinion that the interests of justice so require they shall
allow the application and try separately the accused who made it.
Where a charge-sheet contains more than one charge the
accused may, before pleading to the charges, apply to the court to
be tried separately on any charge in that charge-sheet on the ground
that he would be prejudiced in his defence if he were not tried
separately on that charge. If the accused makes such an application
the prosecutor may address the court in answer thereto and the
accused may reply to the prosecutor’s address. If the court are of
the opinion that the interests of justice so require they shall allow
the application and try the accused separately on the charge to
which it relates as if that charge had been inserted in a separate
charge-sheet.
(1) After any pleas under rule 36, any objection under rule
35, and any applications under rules 37 and 38, have been dealt
with, the accused shall be required (subject to sub-rule (2)) to plead
either guilty or not guilty to each charge on which he is arraigned.
(2) Where a court is empowered by article 104 of the Act to
find an accused guilty of an offence other than that charged or
guilty of committing the offence in circumstances involving a less
degree of punishment or where they could, after hearing the
evidence, make a special finding of guilty subject to exceptions or
variations in accordance with rule 63, the accused may plead guilty
to such other offence or to the offence charged as having been
committed in circumstances involving a less degree of punishment
or to the offence charged subject to such exceptions or variations.
(1) If an accused pleads guilty to a charge under either
rule 39(1) or (2), the president or judge advocate shall, before the
court decide to accept the plea, explain to the accused the nature of
the charge and the general effect of his plea and in particular the
difference in procedure when an accused pleads guilty and when an
accused pleads not guilty.
(2) A court shall not accept a plea of guilty under either rule
39(1) or (2) if -
(a) the court are not satisfied that the accused understands
the nature of the charge or the effect of his plea; or
(b) the president having regard to all the circumstances,
considers that the accused should plead not guilty; or
(c) the accused is liable, if convicted, to be sentenced to
imprisonment for life.
(3) In the case of a plea of guilty under rule 39(2), a court shall
also not accept the plea unless the convening officer concurs and
they are satisfied of the justice of such course. The concurrence of
the convening officer may be signified by the prosecutor.
(4) When a plea of guilty under either rule 39(1) or (2) is not
accepted by the court or the accused either refuses to plead to the
charge or does not plead to it intelligibly, the court shall enter a
plea of not guilty.
(5) When a court are satisfied that they can properly accept a
plea of guilty under either rule 39(1) or (2) they shall record a
finding of guilty in respect thereof.
(1) When an accused pleads guilty to the first of two or
more alternative charges, the court, if they accept the accused’s
plea of guilty, shall record a finding of guilty in respect of the first
charge and the prosecutor shall withdraw any alternative charge
before the accused is arraigned on it.
(2) When an accused pleads guilty to one of two or more
charges which are laid in the alternative other than the first of such
charges, the court may -
(a) proceed as if the accused had pleaded not guilty to all
the charges; or
(b) with the concurrence of the convening officer (which
may be signified by the prosecutor) record a finding of
guilty on the charge to which the accused has pleaded
guilty and a finding of not guilty on any alternative
charge which is placed before it in the charge-sheet.
Where the court record such findings, the prosecutor
shall before the accused is arraigned on it withdraw
any charge which is alternative to the charge of which
the court have found the accused guilty and which is
placed after it in the charge-sheet.
Procedure after recording a finding of guilty
After the court have recorded a finding of guilty, if there is
no other charge in the same charge-sheet to which the accused has
pleaded not guilty and no other accused who has pleaded not guilty
to a charge in that charge-sheet, they shall proceed with the trial as
directed by rule 43. If there is another charge in the charge-sheet to
which the accused has pleaded not guilty or there is another
accused who has pleaded not guilty to a charge in the charge sheet,
the court shall not comply with rule 43 until after they have dealt
with such other charge or tried such other accused and have
announced and recorded their finding in respect thereof.
(1) After the court have recorded a finding of guilty in
respect of a charge to which an accused pleaded guilty, the
prosecutor shall, subject to rule 42, read the summary or abstract of
evidence to the court or inform the court of the facts contained
therein
Provided that if an expurgated copy of the summary or
abstract was sent to the president, the prosecutor shall not read to
the court those parts of the summary or abstract which have been
expurgated or inform the court of the facts contained in those parts,
and shall not hand the original summary or abstract to the court
until the trial is concluded.
(2) If there is no summary or abstract of evidence or the
summary or abstract is, in the opinion of the court, inadequate or
incomplete, the court shall hear and record in accordance with
these Rules sufficient evidence to enable them to determine the
sentence.
(3) After sub-rules (1) and (2) have been complied with, the
accused may -
(a) adduce evidence of character and in mitigation of
punishment; and
(b) address the court in mitigation of punishment.
(4) After sub-rule (3) has been complied with the court shall
proceed as directed in rule 68(1), (2), (3) and (4).
Changes of Plea
(1) An accused who has pleaded not guilty may at any
time before the court close to deliberate on their finding withdraw
his plea of not guilty and substitute a plea of guilty (including a
plea of guilty under rule 39(2)) and in such case the court shall, if
they are satisfied that they can accept the accused’s changed plea
under these Rules, record a finding in accordance with the
accused’s change of plea and so far as is necessary proceed as
directed by rule 43.
(2) If at any time during the trial it appears to the court that an
accused who has pleaded guilty does not understand the effect of
his plea or the nature of the charge, the court shall enter a plea of
not guilty and proceed with the trial accordingly.
(3) When a court enter a plea of not guilty in respect of any
charge under sub-rule (2), they shall, if there was a charge laid in
the alternative thereto which the prosecutor withdrew under rule
41, reinstate such alternative charge, arraign the accused thereon
and proceed with the trial as if it had never been withdrawn.
Procedure on pleas of not guilty
After a plea of not guilty to any charge has been entered -
(a) the court shall ask the accused whether he wishes to
apply for an adjournment on the ground that any of
these rules relating to procedure before trial have not
been complied with and that he has been prejudiced
thereby or on the ground that he has not sufficient
opportunity for preparing his defence;
(b) if the accused applies for an adjournment -
(i)
the accused may adduce evidence in support of
his application and the prosecutor may adduce
evidence in answer thereto; and
(ii) the prosecutor may address the court in answer
to the application and the accused may reply to
the prosecutor’s address;
(c) the court may grant an adjournment if they think the
interests of justice so require.
(1) The prosecutor may, if he desires, and shall, if required
by the court, make an opening address explaining the charge, where
necessary, and the nature and general effect of the evidence which
he proposes to adduce.
(2) The witnesses for the prosecution shall then be called to
give their evidence.
If the prosecutor intends to adduce evidence which is not
contained in any summary or abstract of evidence given to the
accused, notice of such intention together with the particulars of
the evidence shall, when practicable, be given to the accused a
reasonable time before the evidence is adduced. If such evidence is
adduced without such notice or particulars having been given, the
court may, if the accused so desires, either adjourn after receiving
the evidence or allow any cross-examination arising out of that
evidence to be postponed, and the court shall inform the accused of
his right to apply for such an adjournment or postponement.
The prosecutor shall not be bound to call all the witnesses
against the accused whose evidence is contained in the summary or
abstract of evidence nor a witness whom he has notified the
accused that he intends to call under rule 47, but if the prosecutor
does not intend to call such a witness to give evidence he shall
either tender him for cross-examination by the accused or give the
accused reasonable notice that he does not intend to call the witness
and that the accused will be allowed to communicate with him and
to call him as a witness for the defence, if he so desires and if the
witness is available.
Calling and examination of witness
Save as is otherwise provided by the Act an oath shall be
administered to each witness in accordance with rule 32 before he
gives evidence and in the presence of the accused.
During a trial a witness other than the prosecutor or
accused shall not, except by leave of the court, be in court while not
under exam inat ion , an d i f w hile he is under exam inat ion a
discussion arises as to the allowance of a question or otherwise
with regard to the evidence the court may direct the witness to
withdraw during such discussion.
(1) A witness may be examined by the person calling him
and may be cross-examined by the opposite party to the
proceedings and on the conclusion of any such cross-examination
may be re-examined by the person who called him on matters
arising out of the cross-examination.
(2) The person examining a witness shall put his questions to
the witness orally and unless an objection is made by the witness,
court, judge advocate, prosecutor or by the accused, the witness
shall reply forthwith. If such an objection is made, the witness shall
not reply until the objection has been disposed of.
(3) The court may allow the cross-examination or re-
examination of a witness to be postponed.
(1) The president, the judge advocate and, with permission
of the president, any member of the court may put questions to a
witness.
(2) Upon any such question being answered, the prosecutor and
the accused may put to the witness such questions arising from the
answer which he has given as seem proper to the court.
(1) The record which has been made of the evidence given
by a witness shall be read back to him before he leaves the court
and when this is done he may ask for the record to be corrected or
explain the evidence which he has given. If any such correction is
made or explanation given, the prosecutor and the accused may put
su c h q u e s t i o n s t o t h e w i t n e s s r e s p e c t i n g t h e c o r r e c t i o n o r
explanation as seem proper to the court.
(2) When a shorthand writer is employed it shall not be
necessary to comply with sub-rule (1), if, in the opinion of the court
and the judge advocate (if any), it is unnecessary to do so
Provided that if any witness so demands sub-rule (1) shall
be complied with.
(1) The court may, at any time before they close to
deliberate on their finding or if there is a judge advocate before he
begins to sum up, call a witness or recall a witness, if in the opinion
of the court it is in the interests of justice to do so. If the court call
a witness or recall a witness under this rule, the prosecutor and the
accused may put such questions to the witness as seem proper to
the court.
(2) The prosecutor and the accused may, at any time before the
court close to deliberate on their finding or if there is a judge
advocate before he begins to sum up, recall a witness by leave of
the court and the prosecutor and the accu sed may put such
questions to the witness as seem proper to the court.
Submission of no case to answer and stopping of cases
(1) At the close of the case for the prosecution the accused
m a y s u b m i t t o t h e c o u r t i n r e s p e c t o f a n y c h a rg e t h a t t h e
prosecution has failed to establish a prima facie case for him to
answer and that he should not be called upon to make his defence to
that charge. If the accused makes such a submission, the prosecutor
may address the court in answer thereto and the accused may reply
to the prosecutor’s address.
(2) The court shall not allow the submission unless they are
satisfied that -
(a) the prosecution has not established a prima facie case
on the charge as laid; and
(b) it is not open to them on the evidence adduced to make
a special finding under either article 104 of the Act or
rule 63(3).
(3) If the court allow the submission they shall find the
accused rot guilty of the charge to which it relates and announce
this finding in open court forthwith; if the court disallow the
submission they shall proceed with the trial of the offence as
charged.
(4) Irrespective of whether there has been a submission under
this rule or not, the court may at any time after the close of the
hearing of the case for the prosecution, and after hearing the
prosecutor, find the accused not guilty of a charge, and if they do so
they shall also announce such finding in open court forthwith.
Case for the defence
(1) After the close of the case for the prosecution, the
president or judge advocate (if any) should explain to the accused
that -
(a) if he wishes, he may give evidence on oath as a
witness or make a statement without being sworn, but
that he is not obliged to do either;
(b) if he gives evidence on oath, he will be liable to be
cross-examined by the prosecutor and to be questioned
by the court and the judge advocate (if any), but that, if
he makes a statement without being sworn, no one will
be entitled to ask him any questions; and
(c) whether he gives evidence or makes a statement or
remains silent, he may call witnesses on his behalf
both to the facts of the case and to his character.
(2) After the president or judge advocate has complied with
sub-rule (1), he shall ask the accused if he intends to give evidence
on oath or to make a statement without being sworn and if he
intends to call any witness on his behalf and, if so, whether he is a
witness to fact or to character only.
(3) If the accused intends to call a witness to the facts of the
case other than himself he may make an opening address outlining
the case for the defence before the evidence for the defence is
given.
(1) After rule 56 has been complied with, the witnesses for
the defence (if any) shall be called and give their evidence.
(2) Rules 49, 50, 51, 52, 53 and 54 shall apply to the witnesses
and the evidence for the defence as they apply to the witnesses and
the evidence for the prosecution.
After the witnesses for the defence have given their
evidence the prosecutor may, by leave of the court, call a witness or
recall a witness to give evidence on any matter raised by the
accused in his defence which the prosecution could not properly
have mentioned to the court before the accused disclosed his
defence or which the prosecution could not reasonably have
foreseen.
(1) After all the evidence has been given the prosecutor
and the accused may each make a closing address to the court.
(2) The accused shall be entitled to make his closing address
after the closing address by the prosecutor.
(3) Where two or more accused are represented by the same
defending officer or counsel he may make one closing address only.
For the purposes of rule 56, the handing in by the accused
of a written statement shall be treated as the calling of a witness by
him.
Summing up by Judge Advocate
After the closing addresses, if there is a judge advocate, he
shall sum up the evidence and advise the court on the law relating
to the case in open court.
Deliberation on, and announcement of finding on the charge
(1) After the closing address, or if there is a judge
advocate after his summing up, the court shall close to deliberate
on their finding on the charge.
(2) While the court are deliberating on their finding on the
charge no person shall be present except the president and members
of the court and any officer under instruction.
(3) If there is a judge advocate and the court, while deliberating
on their finding on the charge, require further advice from him, the
court shall suspend their deliberation and ask and be given such
advice in open court.
(1) The opinion of the president and each member as to
the finding shall be given in closed court, orally, and on each
charge separately and their opinions shall be given in order of
seniority commencing with the junior in rank.
(2) Save as is otherwise provided in sub-rule (4) the court shall
record on every charge on which a plea of not guilty has been
recorded
(a) a finding of guilty or a special finding in accordance
with article 104 or article 122(2) of the Act or sub-rule
(3) or
(b) a finding of not guilty or of not guilty and honourably
acquitted of the charge.
(3) Where the court are of the opinion as regards any charge
that the facts which they find to be proved in evidence differ from
t h e f a c t s a l l e g e d i n t h e p a r t i c u l a r s o f t h e c h a rg e , b u t a r e
nevertheless sufficient to prove the offence stated in the charge and
that the difference is not so material as to have prejudiced the
accused in his defence, the court may, instead of recording a
finding of not guilty, record a finding that the accused is guilty of
the charge subject to any exception or variation which they shall
specify in the finding.
(4) Where the court have recorded a finding of guilty on the
charge which is laid in the alternative they shall find the accused
not guilty of any charge alternative thereto which is placed before it
in the charge-sheet and record no finding on any charge alternative
thereto which is placed after it in the charge-sheet.
(1) The finding on each charge shall be announced in open
court forthwith.
(2) Every finding which requires confirmation shall be
announced as being subject to confirmation.
(3) The finding shall be in the appropriate form set out in the
Fourth Schedule.
Procedure after announcement of finding
After the court have announced their finding on any charge
on which the court have entered a plea of not guilty, if there is
another charge in the same charge-sheet on which the court have
accepted a plea of guilty, the court shall comply with rule 4(1) and
(2) in respect of that charge before proceeding with the trial.
Where there is another charge-sheet against the accused
before the court, the court shall not comply with rules 67, 68 and 69
until they have arraigned and tried the accused and have complied
with rule 64 and, if necessary, with rule 65, in respect of each
charge in such other charge-sheet unless that charge-sheet is
withdrawn under rule 79.
If the findings on all charges against the accused are not
guilty the court shall order the accused to be released and the
president and judge advocate (if any) shall date and sign the record
of the proceedings. The president or the judge advocate shall then
forward it as directed in the convening order.
(1) If the finding on a charge against the accused is guilty,
or the court makes a special finding in accordance with article 104
of the Act or rule 63(3), the court before deliberating on their
sentence shall whenever possible take evidence of his age, rank and
service record. Such service record shall include -
(a) any recognised acts of gallantry or distinguished
conduct on the part of the accused and any decoration
to which he is entitled; and
(b) particulars of any offence of which the accused has
been found guilty during his service and which is
recorded in the service books relating to the accused
and of the length of time he has been under arrest
awaiting trial or in confinement under a current
sentence
(2) Evidence of the matters referred to in sub-rule (1) may be
given by a witness producing to the court a written statement
containing a summary of the entries in the service books relating to
the accused, after the witness has in court verified such statement
and identified the accused as the person to whom it relates. Such
statement shall be in the form set out in the Fourth Schedule.
(3) In addition to the evidence contained in the statement
referred to in sub-rule (2), it shall be the duty of the prosecutor
whenever possible to call as a witness an officer to give to the court
any information in the possession of the military authorities
regarding -
(a) the accused’s family background and responsibilities
and any other circumstances which may have made
him more susceptible to the commission of the offence
charged;
(b) his general conduct in the service, and
(c) particulars of offences which do not appear in the
statement above referred to of which the accused has
been found guilty by a civil court, not being offences
of which he was found guilty while under the age of
fourteen years, and which are of the same general
nature as that of which the accused has been found
guilty by the court-martial
Provided that the court shall not he informed of
any such civil offence unless the finding is proved in
accordance with article 173 of the Act, or the accused
has admitted, after the purpose for which such
admission is required has been explained to him, that
he has been found guilty of the offence.
(4) The accused may cross-examine any witness who gives
evidence in accordance with sub-rules (2) and (3) and if the
accused so requires the service books, or a duly certified copy of
the material entries therein, shall be produced, and if the contents
of the form are in any respect not in accordance with the service
books or such certified copy, the court shall cause the form to be
corrected accordingly.
(5) After sub-rules (1), (2), (3) and (4) have been complied
with the accused may -
(a) give evidence on oath and call witnesses in mitigation
of punishment and to his character; and
(b) address the court in mitigation of punishment.
(1) Before the court close to deliberate on their sentence,
the accused may request the court to take into consideration any
other offence against the Act committed by him of similar nature to
that of which he has been found guilty, and, upon such a request
being made, the court may agree to take into consideration any of
such other offences as to the court seem proper.
(2) A list of the offences which the court agree to take into
consideration shall be read to the accused by the president or the
judge advocate, who shall ask the accused if he admits having
committed them. The accused shall sign a list of the offences which
he admits having committed and the court shall take the offences in
this list into consideration. This list shall be signed by the president
and be attached to the record of proceedings as an exhibit.
Deliberation on sentence
While the court are deliberating on their sentence no
person shall be present except the president, members, judge
advocate (if any) and any officer under instruction.
(1) The court shall award one sentence in respect of all the
offences of which the accused is found guilty. The sentence shall be
in the appropriate form set out in the Fifth Schedule.
(2) The opinion of the president and each member as to the
sentence shall be given orally and in closed court and their opinions
shall be given in order of seniority commencing with the junior in
rank.
(3) When the court have agreed to take into consideration an
offence which is not included in the charge-sheet, the court shall
award a sentence appropriate both to the offence of which the
accused has been found guilty and to the other offence which they
are taking into consideration, but no greater than the maximum
sentence which may be awarded under the Act for the offence of
which the accused has been found guilty, save that they may
include in their sentence a direction that such deduction shall be
made from the pay of the accused as they would have had the
power to direct to be made if the accused had been found guilty of
the offence taken into consideration as well as of the offence of
which he has been found guilty.
(4) The court may make a recommendation to mercy and if they
do so shall record in the proceedings their reasons for making it.
Where two or more accused are tried separately by the
same court upon charges arising out of the same transaction, the
court may, if they think that the interest of justice so require,
postpone their deliberation upon the sentence to be awarded to any
o n e o r m o r e o f s u c h a c c u se d u n t i l t h e y h a v e r ec o r d e d a n d
announced the findings in respect of all of such accused.
Announcement of sentence and conclusion of trial
(1) The sentence, and any recommendation to mercy
together with the reasons for making it, shall be announced in open
court. The sentence shall also be announced as being subject to
confirmation.
(2) When sub-rule (1) has been complied with the president
shall announce in open court that the trial is concluded.
(3) Immediately after the conclusion of the trial the president
and judge advocate (if any) shall date and sign the record of the
proceedings. The president or the judge advocate shall then forward
it as directed in the convening order.
General duties of the president, prosecutor and the defending
officer or counsel
It shall be the duty of the president to ensure that the trial is
conducted in accordance with the Act and these Rules and in a
manner befitting a court of justice and in particular -
(a) to ensure that the prosecutor and the defending officer
or counsel conduct themselves in accordance with
these Rules;
(b) to ensure that the accused does not suffer any
disadvantage in consequence of his position as such or
of his ignorance or of his incapacity to examine or
cross-examine witnesses or to make his own evidence
clear and intelligible, or otherwise;
(c) to ensure that an officer under instruction does not
express an opinion to the court on any matter relating
to the trial before the court have come to their finding,
nor on sentence before the court have decided upon the
sentence;
(d) when there is no judge advocate present, to ensure that
a proper record of proceedings is made in accordance
with rule 89 and that the record of the proceedings and
exhibits are properly safeguarded in accordance with
rule 91.
(1) It shall be the duty of the prosecutor and of the
defending officer or counsel to assist the court in the administration
of justice, to treat the court and judge advocate with due respect
and to present their cases fairly and in particular -
(a) to conform with these Rules and the practice of the
civil courts in Malta relating to the examination, cross-
examination and re-examinate of witnesses;
(b) not to refer to any matter not relevant to the charge
before the court; and
(c) not to state as a matter of fact any matter which is not
proved or which they do not intend to prove by
evidence.
(2) Without prejudice to the generality of any of the provisions
of sub-rule (1), it shall be the duty of the prosecutor to bring the
whole of the transaction before the court and not to take any unfair
advantage of, or to withhold any evidence in favour of, the accused.
(1) Subject to these Rules the following persons shall be
allowed to appear as counsel at a court-martial
(a) every person who is qualified as advocate or a legal
procurator according to the law of Malta; and
(b) with the consent of the convening officer, any person
who is recognised by him as having in any
Commonwealth country or territory outside Malta
rights and duties similar to those of an advocate or
legal procurator in Malta, and as being subject to
punishment or disability for a breach of professional
rules.
(2) Any right granted by these Rules to the accused at a court-
martial to call or examine witnesses or to address the court, any
right of the accused to object to the admissibility of evidence at a
court-martial and any right granted to the accused by rules 23
(1)(e), (g) and (h), 25, 29, 34, 35, 36, 37, 38, 45, 55, 69, 77(2), 89
and 91(2) may be exercised by his defending officer or his counsel
on his behalf, and any reference in these Rules to any address,
request, application, claim, submission, objection or plea to the
jurisdiction or in bar of trial made, taken or offered at a court-
martial by the accused shall be construed as including any address,
request, application, claim, submission, objection or plea to the
jurisdiction or in bar of trial made, taken or offered at a court-
martial by his defending officer or counsel on his behalf.
(3) If the accused is to be defended at his court-martial by
counsel not nominated by the convening officer, the accused shall
give the convening officer notice of the fact not less than twenty-
four hours before his trial.
Powers and duties of the judge advocate
(1) The judge advocate shall be responsible for the proper
discharge of his functions to the Attorney General.
(2) The prosecutor and the accused respectively are, at all
times after the judge advocate is named to act at the trial, entitled to
his opinion on any question of law or procedure relative to the
charge or trial whether he is in or out of court, subject, when he is
in court, to the permission of the court.
(3) On the assembly of the court the judge advocate shall
advise the court of any defect in the constitution of the court or in
the charge-sheet, and during the trial he shall advise the court upon
all questions of law or procedure which may arise, The court shall
accept his advice on all such matters unless they have weighty
reasons for not doing so, and if the court do not accept it their
reasons for not doing so shall be recorded in the proceedings.
(4) After the closing addresses the judge advocate shall sum up
the evidence and advise the court upon the law relating to the case
before the court close to deliberate on their finding. If in the course
of deliberating on their finding the court require further advice
from the judge advocate, they shall suspend their deliberation and
ask and be given such advice in open court.
(5) If when the court announce a finding of guilty or a special
finding under either article 104 of the Act or rule 63(3) the judge
advocate is of the opinion that such finding or special finding is
contrary to the law relating to the case, he shall once more, but not
more than once, advise the court what findings are, in his opinion,
open to them. The court shall then reconsider their finding in closed
court. The record of the proceedings relating to such
reconsideration shall be in the form set out in the Fourth Schedule.
(6) The judge advocate shall be present whenever the court is
sitting whether in open or closed court, except when the court is
deliberating on the finding on the charge or on a revision thereof.
(7) The judge advocate has equally with the president the duty
of ensuring that the accused does not suffer any disadvantage in
consequence of his position as such or of his ignorance or of his
incapacity to examine or cross-examine witnesses, or to make his
own evidence clear and intelligible or otherwise.
(8) The judge advocate shall be responsible for seeing that a
proper record of the proceedings is made in accordance with rule
89 and responsible for the safe custody of the record of the
proceedings under rule 91.
(1) Where there is a judge advocate and -
(a) during the course of a trial any question as to
admissibility of evidence arises; or
(b) during a joint trial an application is made by any of the
accused for a separate trial; or
(c) an application is made by an accused that a charge
should be tried separately,
the president may direct that the point at issue shall be determined
by the judge advocate in the absence of the president and the
members of the court and of any officer under instruction. Where
the president so directs, he, the members of the court and any
officer under instruction shall withdraw from the court.
(2) The judge advocate shall, when the president and members
of the court and any officer under instruction have withdrawn in
accordance with sub-rule (1), hear the arguments and evidence
relevant to the point at issue and shall give his ruling upon this
point and such reasons therefore as he may consider necessary.
After the judge advocate has given his ruling, the president and
members of the court and any officer under instruction shall return
to the court room and the judge advocate shall announce his ruling
to them and the court shall follow his ruling.
(3) When a judge advocate sits alone in accordance with this
rule the proceedings before him shall form part of the proceedings
of the court and article 64(1), articles 65 and 99, article 100(1) and
(2), and articles 101, 105 and 106 of the Act and rules 32, 49, 50,
51, 52, 53, 54, 75, 76, 82, 83, 84, 88, 89, 90, 91, 94, 95 and 101
shall apply to proceedings before the judge advocate sitting alone
as they apply to proceedings before the president and members of
the court, and anything which is authorised by those articles and
those rules to be done by the court or by the president may be done
by the judge advocate when sitting alone.
(4)
When a judge advocate is sitting alone in accordance with
this rule and a person subject to military law commits an offence
against article 64(1) of the Act, the judge advocate shall report the
occurrence to the president who shall take such action as he
considers appropriate.
(5) The judge advocate shall be responsible for ensuring that
the president and members do not see the record of the proceedings
before the judge advocate when sitting alone until after the court
has announced its finding.
Withdrawal and amendment of charge-sheets and charges
A court may with the concurrence of the convening officer
(which may be signified to the prosecutor) allow the prosecutor to
withdraw a charge before the accused is arraigned thereon or a
charge-sheet before the accused is arraigned on any charge therein.
(1) At any time during a trial if it appears to the court that
there is in the charge-sheet -
(a) a mistake in the name or description of the accused;
(b) a mistake which is attributable to a clerical error or
omissions,
the court may amend the charge-sheet so as to correct the mistake.
(2) If at any time during a trial at which there is a judge
advocate it appears to the court, before they close to deliberate on
their finding, that it is desirable in the interests of justice to make
an addition to, omission from or alteration in a charge which cannot
be made under sub-rule (1) they may, if such addition, omission or
alteration can be made without unfairness to the accused, so amend
the charge if the judge advocate concurs.
(3) If at any time during a trial at which there is no judge
advocate it appears to the court, before they close to deliberate on
their finding, that in the interests of justice it is desirable to make
any addition to, omission from or alteration in a charge which
cannot be made under sub-rule (1), they may adjourn and report
their opinion to the convening officer, who may -
(a) amend the charge if permissible under rule 81 and
direct the court to try it as amended after due notice of
the amendment has been given to the accused; or
(b) direct the court to proceed with the trial of the charge
without amending it; or
(c) convene a fresh court to try the accused.
When a court report to the convening officer under either
rule 35(2) or rule 80(3), he may amend the charge in respect of
which they have reported to him by making any addition to,
omission from or alteration in the charge which, in his opinion, is
desirable in the interests of justice and which he is satisfied can be
made without unfairness to the accused.
Sitting and adjournment of the court
Subject to the provisions of the Act and of these Rules
relating to adjournment, a trial shall be continued from day to day
and the court shall sit for such time each day as may be reasonable
in the circumstances
Provided that the court shall not sit on a Sunday, Christmas
Day, or Good Friday, unless in the opinion of the court or of the
convening officer the exigencies of the service make it necessary to
do so.
(1) During a trial the court may adjourn from time to time
and from place to place as the interests of justice require.
(2) A court may adjourn at any time to consult the convening
officer on a point of law.
(3) If during a trial any reason emerges which makes it
advisable that the court should not continue to hear the case, the
court shall adjourn and report thereon to the convening officer.
(4) If at any time during a trial the accused becomes ill and it
appears to the court that the illness is such that it will be
impracticable to continue the trial, the court shall ascertain the
facts of the illness and shall then adjourn and report to the
convening officer.
If at any time during a trial before the court close to
deliberate on their finding it appears to the court that they should,
in the interests of justice, view any place or thing, they may adjourn
for this purpose. When the court view any place or thing the
president, members of the court, judge advocate (if any),
prosecutor, accused and defending officer or counsel (if any) shall
be present.
(1) If after the commencement of a trial the president dies
or is otherwise unable to attend, the court shall adjourn and the
senior member shall report to the convening officer.
(2) If after the commencement of a trial any member of the
court dies or is otherwise unable to attend, the court, if not thereby
reduced below the legal minimum, shall continue with the trial, but
if reduced below the legal minimum the court shall adjourn and the
president shall report to the convening officer.
(3) If a judge advocate who has been appointed to act at a trial
dies or is otherwise unable to attend, the court shall adjourn and
report to the convening officer.
(4) If the president or a member of the court is absent during
any part of the trial, he shall take no further part in it and the like
steps shall be taken as if the president or member, as the case may
be, had died.
(5) An officer cannot be added to the court after the accused
has been arraigned.
(1) Where in the trial of a person the question of his
fitness to be tried falls to be determined in accordance with the
provisions of article 122(5) of the Act, the court shall take evidence
as to his condition. If after considering the evidence they are of the
opinion that the accused is fit to stand trial, they shall proceed with
the trial; but if they are of the opinion that the accused is unfit to
s t a n d hi s t ri a l t he y s h a l l s o fi n d a nd t he ir f in d in g s ha l l be
a n n ou nc e d in o pe n c ou rt f o rt hw it h a n d a s bei ng s u b je c t to
confirmation.
(2) If a court, in the course of their deliberation on their
finding on a charge find pursuant to article 122(2) of the Act, that
the accused was not guilty of the offence by reason of insanity,
their finding shall be announced in open court forthwith and as
being subject to confirmation.
(3) Immediately after a finding has been announced under
either sub-rule (1) or (2) the president shall announce in open court
that the proceedings are terminated and thereupon the president and
the judge advocate (if any) shall date and sign the record of the
proceedings. The president or judge advocate shall then forward it
as directed in the convening order.
Interviewing and attendance of witnesses
(1) The prosecution shall not, without the consent of the
convening officer, or, after the trial has begun, without the consent
of the president, interview any witness who was called for the
defence at the taking of the summary of evidence or whose
attendance at the trial the accused has requested in accordance with
rule 23(1)(e).
(2) Except as provided in rule 48, neither the accused nor any
person on his behalf shall, without the consent of the convening
officer, or, after the trial has begun, without the consent of the
president, interview any witness who was called for the prosecution
at the taking of the summary of evidence or whose evidence is
included in the abstract of evidence, or in respect of whom the
prosecution have given the accused notice under rule 47 that they
intend to call him as a witness at the trial.
(1) A witness who is subject to military law may be
ordered by the proper military authority to attend at the taking of a
summary of evidence or a trial by court-martial.
(2) A witness who is not subject to military law may be
summoned to attend -
(a) the taking of a summary of evidence by an order under
the hand of the commanding officer of the accused; or
(b) a trial by court-martial by an order under the hand of
an officer authorised to convene a court-martial or of a
staff officer on his behalf, or, after the assembly of the
court, of the president.
(3) The summons referred to in sub-rule (2) shall, when it
relates to the taking of a summary of evidence be in the appropriate
form set out in the First Schedule, and, when it relates to a trial by
court-martial, be in the appropriate form set out in the Fourth
Schedule, and shall be served on the witness either personally or by
leaving it with some person at the witness’s normal place of abode
or of business.
(4) The provisions of article 106 of the Act shall apply in
relation to proceedings at the taking of a summary of evidence as
they apply in relation to proceedings at a court-martial, and when
so applied they shall be construed as though the words "officer
taking the summary of evidence" were substituted for the words
"president of the court-martial".
Record of proceedings
(1) The proceedings of general and district courts-martial
shall be recorded in accordance with the following provisions
(a) the proceedings of a court-martial shall be recorded in
accordance with the appropriate form set out in the
Fourth Schedule and in sufficient detail to enable the
confirming officer to follow the course of proceedings
and to judge of the merits of the case;
(b) when there is a shorthand writer present the evidence
should be taken down in narrative form as nearly as
possible in the words used
Provided that if the court, judge advocate,
prosecutor or accused consider it necessary, any
particular question and answer shall be taken down
verbatim;
(c) when an objection, submission or application is made
during a trial at which there is no shorthand writer, a
record shall be made of the proceedings relating to
such objection, submission or application if and in
such detail as the court or judge advocate thinks fit
Provided that if the prosecutor or accused so
requests a note shall be made of the objection,
submission or application, the grounds therefore, the
advice of the judge advocate (if any) thereon and the
decision of the court;
(d) when any address by the prosecutor or the accused or
summing up of the judge advocate is not in writing and
there is no shorthand writer present, it shall only be
necessary to record so much of such address or
summing up as the court or advocate thinks proper
Provided that if the prosecutor or accused so
requests a note shall be made of any particular point in
such address or summing up;
(e) there shall not be recorded in the record of proceedings
any matter not forming part of the trial; but if any
comment or report seems to the court to be necessary,
the president may forward it to the proper military
authority in a separate document.
(2) The proceedings of a field general court-martial shall so far
as practicable be recorded in accordance with the provisions of sub-
rule (1) and the record must in any event contain the names of the
president and members constituting the court and the judge
advocate (if any), the name and description of the accused, the
charge-sheet, all pleas, a brief summary of the evidence and the
finding and sentence.
(1) Subject to sub-rule (2), any document or thing
admitted in evidence shall be made an exhibit.
(2) When an original document or book is produced to the
court by a witness, the court may at the request of the witness
compare a copy of it or an extract of the relevant parts therefrom
with the original, and after they have satisfied themselves that such
copy or extract is correct and the president or the judge advocate
has certified thereon that the court has compared it with the original
and found it correct, the court may return the document or book to
the witness and attach the copy or extract to the record of the
proceedings as an exhibit.
(3)
Every exhibit shall -
(a) be marked with a number or letter and be signed by the
president or judge advocate or have a label bearing a
number or letter and the signature of the president or
judge advocate affixed to it;
(b) be attached to or kept with the record of proceedings,
unless in the opinion of the court, having regard to the
nature of the exhibit or for other good reason, it is not
expedient to attach it to or keep it with the record.
(4) When an exhibit is not attached to or kept with the record of
the proceedings under sub-rule (3)(b), the president shall ensure
that proper steps are taken for its safe custody.
(1) During a trial at which there is no judge advocate, the
record of the proceedings and the exhibits shall be deemed to be in
the custody of the president. During a trial at which there is a judge
advocate, the record and the exhibits shall be deemed to be in the
custody of the judge advocate, save when he is not present in
closed court, when they shall be deemed to be in the custody of the
president.
(2) With the permission of the court, the prosecutor or the
accused may at any reasonable time before the trial is concluded
have a particular part of the record of the proceedings read to him,
and, if proper precautions are taken for its safety, inspect any
exhibit.
Confirmation, revision and promulgation
(1) When a confirming officer receives record of the
proceedings of a court-martial and the finding of the court requires
confirmation, he shall record his decision thereon and on any
sentence on the record of the proceedings in the appropriate form
set out in the Fourth Schedule, and such record of his decision shall
form part of the record of the proceedings.
(2) When a court have accepted a plea of guilty made under
rule 39(2), the confirming officer may confirm their finding
notwithstanding that the court have accepted the plea without the
concurrence of the convening officer if, in the opinion of the
confirming officer, it is in the interests of justice to do so.
(3)
When a court have rejected a plea to the jurisdiction of the
court or a plea in bar of trial or have overruled an objection to a
charge, it shall not be necessary for the confirming officer to
approve specifically the decision of the court, but his approval shall
be implied from his confirming the finding on the charge to which
the plea or rejection relates. If he disapproves the decision of the
court to reject the plea or to overrule the objection, he shall
withhold confirmation of the finding on the charge to which the
plea or objection relates.
(4) A confirming officer may state his reasons for withholding
confirmation in any case, but if he withholds confirmation where a
court have rejected a plea to the jurisdiction or a plea in bar of trial
or have overruled an objection to the charge, because he
disapproves this decision of the court, he shall when recording his
decision under sub-rule (1) state that he has withheld confirmation
for this reason.
(5) If the sentence of a court-martial is informally expressed,
the confirming officer may confirming the sentence vary the form
thereof so that it shall be properly expressed.
(6) Whenever it appears that there is sufficient evidence or a
plea of guilty under either rule 39(1) or (2) to justify the finding of
the court, such finding and any lawful sentence consequent thereon
may be confirmed, and if confirmed shall be valid notwithstanding
any deviation from these Rules, if the accused has not been
prejudiced by such deviation.
(7) When a confirming officer has confirmed a finding and
sentence of a court or has withheld confirmation thereof, he shall
send the record of the proceedings to the commanding officer of the
accused for promulgation to the accused of the finding and
sentence, or of the fact that confirmation has been withheld, as the
case may be. The fact of promulgation shall be recorded on the
record of the proceedings in the form set out in the Fourth
Schedule. If confirmation has been withheld because the
confirming officer disapproves the court’s decision to reject a plea
to the jurisdiction or a plea in bar of trial or to overrule an objection
to the charge, the accused shall be so informed.
(1) The proceedings and decision of a court on revision
shall be recorded on the record of the proceedings in the
appropriate form set out in the Fourth Schedule, and the president
shall date and sign such record and decision and return it to the
confirming officer, after it has been signed by the judge advocate
(if any).
(2) When an accused is acquitted on revision, the revised
finding shall be communicated to the accused in such manner as
may be specified by the confirming officer.
Loss of proceedings
(1) If before confirmation the whole or any part of the
original record of the proceedings of a court-martial is lost and a
copy exists, such copy may, if the president or the judge advocate
certifies it to be correct, be accepted and used in lieu of the
original.
(2) If before confirmation the whole or any part of the original
record of the proceedings of a court-martial is lost and no copy
thereof exists, but evidence of the proceedings of the court can be
procured to enable the record or part thereof which has been lost to
be reconstituted sufficiently to permit the confirming officer to
follow the course of the proceedings and to judge on the merits of
the case, the record as so reconstituted may, with the consent of the
accused, be accepted and used in lieu of the original
Provided that where part only of the original record of the
proceedings of a court-martial has been lost, and the part which
remains is sufficient to enable the confirming officer to follow the
course of the proceedings and judge on the merits of the case, such
remaining part may, with the consent of the accused, be accepted
and used as if it were the complete record, and in such case it shall
not be necessary to reconstitute the part of the record which has
been lost.
(3) If before confirmation the whole or any part of the original
record of the proceedings of a court-martial is lost and such loss
cannot be made good under either sub-rule (1) or (2), the
confirming officer shall withhold confirmation and shall record his
decision in the appropriate form set out in the Fourth Schedule.
If after confirmation the whole or any part of the original
record of the proceedings of a court-martial is lost and a copy
thereof is certified by the president or the judge advocate to be
correct, or a sufficient record of the charge, finding, sentence and
proceedings before the court and of the confirmation of the finding
and sentence remains or can be reconstituted to permit the case
being reviewed or the sentence reconsidered, such copy or
reconstituted record or remaining part of the record may be
accepted and used in lieu of the original.
Cost of copies of record
The rate at which copies of the record of the proceedings of
a court-martial shall be supplied in accordance with article 139(2)
and (3) of the Act shall be the estimated cost of the copy required
not exceeding five cents (0.05) for every folio of seventy-two
words.
Petitions
(1) If an accused who has been sentenced by a court-
martial or who has been found by a court-martial to be unfit to
stand trial or to be not guilty by reason of insanity wishes to
petition before confirmation against the finding or sentence or both,
h e s h a l l p r e s e n t a p e t it i o n t o t he c o nf i r m in g o ff i c e r i n t he
appropriate form set out in the Seventh Schedule.
(2) If an accused who has been sentenced by a court-martial or
who has been found by a court-martial to be unfit to stand trial or to
be not guilty by reason of insanity wishes t o petition after
promulgation against the finding so as to be able to exercise the
rights conferred on him by article 117 of the Act if his petition is
rejected, he shall present a petition (hereinafter referred to as an
"appeal petition") in the appropriate form set out in the Seventh
Schedule, within the periods specified in article 117(3) of the Act.
(3) If an accused who has been sentenced by court-martial or
who has been found by a court-martial to be unfit to stand his trial
or to be not guilty by reason of insanity wishes to petition after
promulgation against the finding otherwise than by means of an
appeal petition, he shall present the petition to a reviewing
authority at any time within six months of promulgation in the
appropriate form set out in the Seventh Schedule.
(4) If an accused who has been sentenced by court-martial
wishes to petition after promulgation against the sentence, he shall
present a petition to a reviewing authority or an officer authorised
to reconsider a sentence of a court-martial under article 115 of the
Act at any time within six months of promulgation in the
appropriate form set out in the Seventh Schedule.
(5) An appeal petition or a petition under sub-rule (3) or (4)
which is presented to the person under whose immediate
jurisdiction the petitioner is at the time shall be treated as having
been presented to the authority to whom the petition is addressed.
Miscellaneous provisions
(1) Where in the opinion of the officer who is or would be
responsible for convening a court-martial to try the accused or, if
he is not available, of the senior officer on the spot, the exigencies
of the service render compliance with all or any of the provisions of
the Rules mentioned in sub-rule (4) impracticable, the officer who
is or would be responsible for convening a court-martial to try the
accused, or the senior officer on the spot as the case may be, may
make a declaration to that effect in the appropriate form set out in
the Fourth Schedule.
(2) Any declaration made under sub-rule (1) by the senior
officer on the spot shall be forwarded by him as soon as possible to
the officer who is or would be responsible for convening a court-
martial to try the accused.
(3) When a declaration has been made under sub-rule (1) it
shall not be necessary to comply with any provision of these Rules
which is mentioned in such declaration and these Rules shall be
construed accordingly.
(4) The provisions of these Rules in respect of which a
declaration may be made under sub-rule (1) are.
(a) provisos (a) and (b) to rule 6(2);
(b) rule 8(b) insofar as it relates to the accused’s rights to
insist that a witness shall be compelled to attend the
taking of a summary of evidence for cross-
examination;
(c) rule 17 insofar as it provides that the documents
specified therein must be given to the accused less
than twenty-four hours before the appropriate superior
authority investigates and deals summarily with the
charge;
(d) rule 23(1)(b), (c) and (d) insofar as it provides that the
documents specified therein shall be given to the
accused not less than twenty-four hours before his
trial.
(5) If an accused is brought to trial by court-martial or is dealt
w i t h s u m m a r i l y b y a n a p p r o p r i a t e s u p e r i o r a u t h o r i t y, a n y
declaration which has been made in his case under sub-rule (1)
shall be attached to the record of the proceedings of the court-
martial or to the record made by the appropriate superior authority
as the case may be.
(1) When in the opinion of the officer who is or would be
responsible for convening a court-martial to try the accused, or, if
he is not available, of the senior officer on the spot a charge-sheet,
summary or abstract of evidence or other document which, or a
copy of which, is required under these Rules to be given to an
accused contains information the disclosure of which would or
might be directly or indirectly useful to an enemy, the officer who
is or would be responsible for convening a court-martial to try the
accused, or the senior officer on the spot, as the case may be, may
make a declaration to that effect in the appropriate form set out in
the Fourth Schedule specifying the document concerned.
(2) Any declaration made under sub-rule (1) by the senior
officer on the spot shall he forwarded by him as soon as possible to
the officer who is or would be responsible for convening a court-
martial to try the accused.
(3) When a declaration has been made under sub-rule (1) it
shall not be necessary to give to the accused any document
mentioned in that declaration, or any copy of such a document, and
it shall be a sufficient compliance with these Rules if the accused is
given a proper opportunity to inspect such document while
preparing and making his defence.
(4) If an accused is brought to trial by court-martial or is dealt
w i t h s u m m a r i l y b y a n a p p r o p r i a t e s u p e r i o r a u t h o r i t y, a n y
declaration which has been made in his case under sub-rule (1)
shall be attached to the record of the proceedings of the court-
martial or to the record made by the appropriate superior authority
as the case may be
A deviation or omission from a form or form of words set
out in a Schedule to these Rules shall not, by reason only of such
deviation or omission, render any document, act or proceeding
invalid,
In any case not provided for by these Rules such course
shall be adopted as appears best calculated to do justice.
RULES OF PROCEDURE