THE RIGHTS OF A SOLDIER CHARGED WITH AN OFFENCE
UNDER THE DEFENCE LAW, 1962

Charge and arrest

1.  If a soldier is charged with an offence he may be ordered into close arrest (i.e., confined in the guard room) or into open arrest or he may be told to attend company etc. orders. (ASO).

If placed in close arrest, he has the right to ask the N.C.O. in charge to tell him the name, rank and unit of the person who ordered his arrest and to request a copy of the charge report as soon as it is received. (ASO).

Performance of duties, &c.

2.  A soldier who is warned for orders, must perform all his ordinary duties. A private soldier in open arrest will attend all parades and may be ordered to perform all duties. (ASO).

A private soldier in close arrest, after handing over his duties does not attend parades or do more than is necessary to keep himself and his room clean. (ASO).

A N.C.O. in any form of arrest (but not if simply warned to attend orders), first hands over his duties and then does no more than is necessary to keep himself and his belongings clean. On Active Service persons in arrest may be ordered to perform all duties and if necessary to bear arms. (ASO).

Investigation of charges

3.   As soon as possible after he is charged, a soldier will be brought before his company, etc., commander or his C.O. who will investigate the charge. (R.P. 3 (1))

4.  He may ask the officer who investigates the charge to explain it to him if he does not understand it . (R.P. 6 (1)).

5.  If the officer who investigates the charge decides to hear the evidence himself he has the right to: —

(a) be present while it is being heard;

(b) ask for the evidence of witnesses to be given in person instead of in writing;

(c) ask for the evidence to be given on oath;

(d) ask the witnesses against him any questions in cross-examination;

(e) give evidence himself on oath (if the other witnesses have done so) or make a statement without being sworn or remain silent; and call any witnesses in his defence. (R.P. (8)).

6.  At any time during his investigation, the C.0. may decide to order a summary of evidence to be taken or an abstract of evidence to be made: See paras. 11, 12, 13 and 14. He must order a summary air abstract if he is going to send the soldier for trial by court-martial. (R.P. 6 (2)).

7.  If after the summary or abstract of evidence has been prepared the C.0.decides to deal personally with the case, the soldier will be brought before him and :—

(a) he may ask for any witnesses who have not yet given evidence in his presence to be called; and

(b) he will have another chance to give evidence or make a statement and to call his own witnesses. (R.P. (10) ).

8.  A soldier has no right to demand a trial by court-martial unless the officer who investigates the charge gives him the choice of accepting his award or being tried by court-martial.

He must be given the choice if the officer who investigates the charge decides that he is guilty and he intends to punish him with any punishment other than the following :—

(a) If a private soldier, a minor punishment

(b) If an NCO., severe reprimand or less.

(DL 1902 S.85 (6)).

He must be given the choice of being tried by court-martial if the officer who investigates the charge decides that he is guilty of absence without leave for more than six hours or an offence which caused him to be detained in hospital as a result of which he will forfeit pay.

(DL, 1962 S. 85 (6) and ‘S. 159 (1) (a) & (c)).

9.  If, having elected to be tried by court-martial, a soldier changes his mind at any time before his trial begins, he will be allowed to withdraw his election before he is remanded for trial unless his C.0. decides otherwise. After he has been remanded, he will only be allowed to withdraw if the officer who would convene his court-martial gives permission.

(DL S. 85 (6) and ASO).

10.  At any time during the C.O’s. investigation a soldier may choose some suitable person in the army, if he is available, to advise him as to his ‘rights’. If necessary the C.0. will appoint an officer for this purpose.

Taking of summary of evidence and making of abstract of evidence.

11.  The evidence in a case may be written down in one of two forms; a summary of evidence or an abstract of evidence. (R.P. 8, 9).

The main differences between the two forms are:—

(a) a summary must be taken in the presence of the soldier; he will not be present while an abstract is being made;

(b) witnesses at a summary give their evidence on oath; an abstract consists of unsworn statements; and

(c) at a summary, he will have a right to question prosecution witnesses and to call witnesses in his defence: he has no such right if an abstract is being made.

12.  In a few cases, a C.0. is bound to order a summary of evidence, but otherwise he is free to order either a summary or an abstract. If the C.O. has ordered an abstract and the soldier thinks a summary should be taken, he should give the C.O. notice in writing that he requires a summary to be taken. He may do this at any time before he has been sent for trial.

(R.P. 6 (2)).

13.  If a summary of evidence is taken the following further points should be noted:—

(a) If the soldier questions (that is, cross-examines) a prosecution witness, his answers will usually be taken down in statement form, but if the soldier wants him to, ‘the officer taking the summary will write down question and answer word for word. (R.P. 8 (g)).

(b) A signed statement can be put into the summary to save calling the person who made it, in which case, it will be read to the soldier. If that person can be compelled to attend, he may demand that he be called for cross-examination. (R.P. H (b) ).

(c) A soldier has no right to have an officer or lawyer to represent him at the summary, but one may be present (with permission) to advise him.

(d) When all the prosecution witnesses have given their evidence, the soldier will be cautioned and told that he need not say anything if he does not want to, but if he does say anything it will be written down and may be made part of the evidence at his trial. He may either give evidence on oath or make a statement; he need not sign the record of his evidence if he does not want to.

(R.P. 8 (c)).

(e) A soldier cannot be cross-examined on the evidence he gives but he may be asked questions if what he has said is not clear. The same applies to any witnesses he calls in his defence. (R.P. 8 (e) ).

14.  When an abstract of evidence has been made, the soldier will be given a copy, cautioned and asked to read it. When he has read it, he may make a statement if he wants to which will be recorded and may become part of the evidence at his trial. (R.P.9(2)).

Identification parades

15.  If during the investigation of the charge a soldier is required to take part in an identification parade to see wether any prosecution witnesses are able to recognize him, he should be made acquainted with the relevant para. of ASO which sets out his rights in detail.

Preparation for trial by court -martial

16.  As soon as possible after the C.0. has remanded a soldier for trial by court-martial he will be given : —

(a) a copy of the charge-sheet;

(b) a copy of the summary or abstract of evidence showing what parts (if any) the prosecution do not intend to prove at his trial;

(c) a notice of any further evidence the prosecution intends to call (if any); and

(d) if he requires it, a list of the ranks, names and units of the president and members of the court which is to try him. (R.P. 24 (1) (d)).

17.  A soldier is entitled to have a defending officer or counsel (that is, a lawyer) appointed to defend him unless he states in writing, that he does not want either. If a defending officer or counsel is appointed, he has the right to communicate with him so that he can prepare his defence.

(R.P. 24 (1) (b)).

If the soldier is to be prosecuted by a legally qualified officer or by counsel he will be told in sufficient time to allow him make arrangements for a legally qualified officer or counsel to defend him.

(R.P. 24 (1) (c)).

18.  When a soldier is given the charge-sheet and summary or abstract of evidence he is entitled to have the charge or charges explained to him. (R.P. 24(1) (e) (I)).

19.  A soldier is entitled to communicate with any persons (other than witnesses who are going to be called for the prosecution) when preparing his case. If he wants to call any witnesses in his defence he must give his C.0. a written request at. least 24 hours before his trial and all reasonable steps will be taken to secure their attendance. (R.P. 25 (1) (a) and (e) (ii) R.P. 21 (1))

20.  If a soldier is given a copy of a statutory declaration made by a prosecution witness he is entitled to require in writing that the witness shall be called in person. His defending officer will tell him the proper form to use. (R.P. 24 (1) (f) ).

21.  If a soldier is going to be tried jointly with any other person he may apply in writing to the officer who is to convene his trial to be tried separately. He should normally only do this if he thinks it is necessary to call the other person as a witness in his own defence. (R.P. 24 (1) (g)).

22.  If the charge-sheet he is given contains a number of charges and he thinks that he would be embarrassed in ‘his defence if they were all tried together, a soldier may apply in writing to the convening officer for one or more of the charges to be tried separately. (R.P. 24 (.1) (h))

23.  In preparing his defence a soldier should also consider the following points and discuss them with his defending officer: —

(a) whether he should make any objection to the president or any member of the court (D.L., 1962, s.96, R.P. 26);

(b) whether the court has jurisdiction (i.e., power) to try him (R.P. 35);

(c) whether the charge is properly framed (R.P. 36);

(d) whether the offence was committed too long ago for the court to have power to try him for it. (D.L. 1962, s.125, R.P. 37);

(e) whether a civil court, or CO., or any other court-martial has already dealt with him for the offence with which he is charged or whether the offence has been condoned. (D.L., 1962, s. 127 (1) and R.P. 37).

Trial by court-martial

24.  Throughout his trial a soldier has the right to be present except when the court is closed.

(R.P. 84 (4)).

25.  He will be in close arrest during his trial and will always have an escort present, unless he is released during the time that the court is not actually sitting. (ASO).

26.  A soldier will be informed of his rights at each point during the progress of the trial by either the president or the judge advocate (if there is one). (R.P. 75 (6), (R.P. 78 (6)).

27.  A soldier will be allowed to consult his defending officer or counsel at any time during the trial. Although he has a right to cross-examine witnesses and to address the court himself, if he has a defending officer or counsel, he must leave it to him to conduct his case for him. (R.P. 77 (2) ).

28.  If a judge advocate has been appointed to sit with the court a soldier is entitled to ask for his opinion on the law or on procedure at any time, in or out of court. If he wants to consult him when he is in court he must ask the court’s permission. (R.P. 78 (1) ).

Arrest following trial

29.  If a soldier has been found guilty by the court and sentenced, whether or not he is released from arrest is governed by the instructions in ASOs.

Appeals and petitions

30.  After the trial is over, if he has been convicted a soldier is entitled to receive a copy of the pamphlet Appeals and Petitions. (D.L. 1962, s.108).

The following courses are open to a soldier who has been convicted : —

(a) Immediately—To petition the Confirming Officer against finding or sentence or both (R.P. 99 (1)).

(b) After promulgation—To present a petition to the Reviewing Authority against finding or sentence or both

(R.P. 99 (3) and (4).

(c) Also after promulgation – To present an appeal petition to the Court of Appeal.

(R.P. 99(2)).