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Once a case has been referred to the APA, it is the prosecuting officer alone who will decide the charges and who will direct the mode of trial of the accused. Formerly, such decisions were taken by the chain of command. The APA also have the power to discontinue proceedings in appropriate cases. Consequently, it can be seen that these functions have now been clearly separated from the chain of command.

Procedural Changes

The requirement for an Abstract of Evidence has gone. This tedious and technical burden placed upon units to produce a bundle of original statements was a constant source of tension for prosecutors, who worried about the safety of such documents and whether units had complied with the technical procedures for compilation and service of the Abstract upon the accused. Now, the Abstract has been replaced by the Prosecution Papers, which is a bundle prepared by the prosecutor himself and served upon the accused. The police hold onto the original documents and exhibits, for production at trial. As before, every soldier charged with an offence must be handed a copy of "The Rights of A Soldier ..." booklet - Army Code 12730 (Revised 1997), which is also obtainable from:

Directorate of Army Legal Services Ministry of Defence Trenchard Lines Upavon Pewsey Wilts SN9 6BE

Or on-line here (Get Acrobat Reader here  )

In addition, soldiers continue to be afforded an opportunity to consult the Manual of Military Law, Part I, and Queen's Regulations. An Accused's Adviser is also appointed. This person is usually an officer, warrant officer or senior Non-Commissioned Officer known to and chosen by the accused.

Many practitioners will recall the post-trial procedure whereby the court's sentence had to be confirmed by the Convening Officer (at the post-trial stage called the "Confirming Officer"), thereby adding a delay factor into the appeal process. Confirmation was unpopular with prosecutor's as well, as quite often a Confirming Officer would seem to reduce a sentence or change a finding for no other reason than that he had the power to do so. Thankfully, the 96 Act abolished the requirement for confirmation. However, the prosecution still does not have the right to refer perverse findings or unduly lenient sentences to the Court of Appeal. This means that a soldier accused stands in a much more favourable position than his civilian counterpart, and it may be considered to be a significant (and illogical) omission by the legislators, bearing in mind the original desire to bring the court-martial system more into line with that of the civilian courts. A Crown Court judge can have his unduly lenient sentences examined by the Court of Appeal, but a court-martial, consisting of a majority of lay persons, cannot. [But, see now the Armed Forces Act 2001, which will enable such referrals to take place, at the direction of the Attorney General.

A very important change introduced by the 96 Act is the right for a soldier to appeal to the Courts-Martial Appeal Court not only against conviction, but also against sentence. This anomaly was long overdue for reform, as it meant that where a soldier and a civilian were jointly tried before and convicted by a court-martial, the civilian could appeal his sentence, but the soldier could not. A booklet called Commander’s Guide to Sentencing , has been published by MOD, is now available online and by mail from:

Directorate of Personal Services (Army) Headquarters Adjutant General (Personnel and Training Command) Trenchard Lines Upavon PEWSEY Wiltshire, SN9 6BE Upavon Mil (94344) 5945 (BT 01980 615945)

This gives a good clear explanation of the ethos of military sentencing.

Other changes included the right of a soldier, in every case, to be given the option of electing trial by court-martial. However, should a soldier elect, the APA will be able to change the charge to one more appropriate to court-martial proceedings, if the facts warrant such a course. Previously, the prosecution had to proceed on the initial charge, even if the conduct alleged would have merited a more serious one. Until changed by the AFDA 2000, the court, unlike previously, was able to sentence in a manner appropriate to the facts (previously it had been restricted to what was in the CO's powers, namely, 28 days detention).   [However, since the Armed Forces Discipline Act 2000 (synopsis) - APA can amend/substitute the charge with the accused's consent. If he does not so consent, they can send the revised charged back to the CO for the CO to start his considerations afresh under s.76(1) of the Army Act 1955. This means the Acc has a right of election on the new charge. Where the accused elects trial, the court cannot award any punishment which could not have been awarded by the commanding officer or appropriate superior authority had the election for trial not been made (ie, up to 60 days with permission from Higher Authority).]

Apart from that, there are few changes to the procedures before or powers of commanding officers. The most significant changes relate to trial by court-martial. The Judge Advocate (a civilian lawyer appointed by the Lord Chancellor) now more closely corresponds to a civilian judge and is the arbiter of the law. The members of the court are now the arbiters of the facts only, although they also participate in sentencing. In addition, the judge-advocate has a vote on sentence and no longer sits solely as an adviser in such matters. Nevertheless, his is one vote out of many, albeit an influential vote. This is to be welcomed. He is, after all, a judicial officer who is trained in sentencing. Some judges advocate are Crown Court Recorders/Assistant Recorders.

The new Court-Martial (Army) Rules are a vast improvement over their predecessors, the "Rules of Procedure", which were primarily designed for non-legally qualified prosecutors and defenders and which, therefore, bore little resemblance to the procedures of the civilian courts. They were turgid and anachronistic. The new rules are also much more flexible and, being subordinate legislation, lend themselves more readily to speedy amendment to reflect significant changes in civilian practice.

The task of physically issuing Convening Orders has now been assumed by a central Court Administration Office, based in Upavon, which is responsible for convening all courts-martial. It is staffed by civilians and is completely independent of the chain of command. It is the Military equivalent of the Listing Office. Since December 2003, it is also responsible for arranging RAF courts-martial and is known by the generic title of the Military Court Service (MCS). Practitioners can communicate with this office in connection with all their administrative needs arising in any case in which they are briefed to appear. There are Clerks to the Court at each of the Assize centres. These Clerks report to Head of MCS in Upavon. They do not currently have the power to issue, alter or amend Convening Orders.
The MCS in Upavon can be contacted by writing to

Practitioners who appear on behalf of accused soldiers or civilians charged with offences under the Army Act 1955, can find full versions of most of the relevant texts at the links listed in Section 2 above. The Armed Forces Act 1996 contains the amendments to the 1955 Act (which is not available on the Internet at the moment).

Aspals can be contacted at

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