CHAPTER XI.

COURTS-MARTIAL.

1.

Courts-Martial shall be held, Offences tried, Sentences pronounced, and execution of such Sentences carried into effect, according to the Articles and Orders contained in the Act of Parliament, 24th and 25th Victoria, chapter 115, cited as "The Naval Discipline Act, 1861."

In carrying the said Act into effect, the following Regulations are to be observed:-

2.

Every Charge or Complaint to be investigated by Court-Martial, must be made in writing, setting forth, circumstantially, the Offence or Offences charged, and the day or days on or about which (or between which if the offences have been of continuous character) the said Offence or Offences was or were committed.

In all applications for Courts-Martial, full and circumstantial reports of the circumstances on which the charge or charges are founded, are to be made, - in order that, in the event of a Prisoner pleading "Guilty," a perfect record of the particulars of the case may be appended to the Minutes of the proceedings.

3.

Whenever the Officer empowered to order Courts-Martial, shall deem it necessary to proceed to the trial of any offence triable under the Naval Discipline Act, he shall be careful to comply in every particular with the terms of the said Act; and in the exercise of the discretion confided to him in selecting the President of the Court, he is to be guided by the circumstances of the case. Should the rank of the person to be tried, or should the character or circumstances of the alleged offence charged, be such as to require that the Officers composing the Court should be Officers of standing and experience, he is to be careful to select as President, an Officer of such seniority as may ensure the attendance of all the Officers of highest rank who may happen to be present at the place where the Court-Martial is ordered to assemble; but when the nature of the offence is such as may be properly dealt with by Officers of ordinary experience, he may select any eligible Officer to preside whom he may consider most desirable with reference to the convenience of the service, - observing that none but Officers junior to the President can be ordered to form a Court.

4.

When a Court-Martial is ordered to be assembled, such timely notice as may be practicable, - and in all cases (except Mutiny), it will be convenient that not less than twenty-four hours' notice, - should be given, in general orders, or by signal, to the ships present, so that the proper Officers may be prepared to attend at the place and hour appointed. The name of the Officer ordered to preside at the Court-Martial is to be announced; and after such notice has been issued, no Officer junior to the President, of a rank eligible to sit as a member of the Court, is to be allowed to proceed on leave of absence without the express authority of the Officer by whom the Court-Marlial may have been ordered; and the name of every Officer so permitted to be absent, is to be forthwith communicated in writing, to the President, by the senior Officer present.

All Flag Officers, Captains, and Commanders, junior to the President, are to be present when the Court Martial is assembled, and are to remain present until the proper number of Officers required to form the Court have been duly sworn.

On the day prior to the assembling of the Court-Martial, the President is to make known, if necessary, that Lieutenants will be required to form a Court, in which case the four senior Lieutenants present are to attend the formation of the Court.

5.

Officers whose duty it maybe to attend as members of a Court-Martial, shall sit only in the confirmed rank in which they are borne on the books of the ships to which they respectively belong, and according to which they are paid; - except Commodores, who, when acting in conjunction with senior Captains, shall sit only according to their seniority as Captains.

6.

The Officer who is to preside at the Court-Martial, shall take care that a copy of the Charge or Complaint be delivered to the person accused, as soon as may be after he shall have received the order to hold such Court-Martial, and not less than twenty-four hours before the trial, except in cases of Mutiny, or under such other pressing circumstances, as might render such delay inexpedient to the Public Service.

7.

Courts-Martial shall be assembled and held in the most convenient part of the Ship, and be public; and all persons, excepting such as are intended to give evidence, shall be admitted.

8.

When there shall be no Prosecutor present, the Judge-Advocate, or Person acting as such, shall conduct the proceedings on the part of the public, so as to bring the whole case in the fullest manner before the Court.

9.

If any Officer required by his rank to sit at a Court-Martial, be personally interested in the matter to be tried, he shall not, if the objection to him be made known, be permitted to be of the number of members of whom the Court shall be composed. If any doubt shall arise as to his being so personally interested, the question shall be decided by the majority of Officers, whose duty to sit in the Court is unquestioned.

10.

As soon as the Court is assembled, and before being sworn, the names of the Officers composing the Court shall be read over to the Prisoner, who shall be asked if he objects to being tried by any member of the Court; and if the Prisoner shall object to any member, the Court shall proceed as is directed in the 53rd section of the Naval Discipline Act.

11.

When the Court is assembled, the Person to be tried, as also, the Prosecutor, if any, shall be brought before it; the Judge-Advocate shall read the Warrant or Power authorizing the Court to assemble, and shall, immediately after, administer to the members the oath prescribed in the 54th section of "The Naval Discipline Act, 1861["]; and shall himself likewise take the Oath prescribed in the 55th section of the said Act. He shall next read the Charge or Complaint against the Person to be tried, and thereupon the Court may proceed to call Witnesses; but they shall not question the said Witnesses until an Oath shall have been administered by the Judge-Advocate, in the words following, which the Witness is to repeat:-

"I, A. B., do most solemnly swear, that in the Evidence I shall give before the Court on the present Trial, 1 will, whether it be favourable or unfavourable to the Prisoner, declare the truth, the whole truth, and nothing but the truth; So help me God."

12.

The Prisoner is not to be called upon to plead to the charge or charges exhibited against him; but should he, voluntarily, plead guilty, his plea is to be recorded, and sentence passed accordingly. On such occasions, the Prisoner may, before the Court shall proceed to deliberate as to the sentence to be pronounced, call evidence as to his general character, but on no other point.

13.

The Judge-Advocate shall take down in writing the Evidence given by each Witness, and shall read the same, in his hearing, to the Court when required to do so, that in case of a mistake, it may be corrected. He shall also take Minutes of the Proceedings of the Court; and, when there shall be occasion, advise the Court of the law, and the proper forms of proceeding, - delivering his opinion on any doubts or difficulties that may arise in the course of the trial.

14.

In taking the opinion of the Court upon all questions the junior Officer shall vote first, and then the other Officers, in order, up to the President; and the votes of the majority (except for judgment of Death, for which see clause 2, in section 46, of the Naval Discipline Act) shall decide the question. Should the members of the Court disagree upon any question, and on a division the votes should be equal, the point in question shall receive the construction most favourable to the Prisoner.

When any question has been once decided by the Court, the decision is to be binding upon the whole Court; but the President may, if he shall think fit, require the members of the Court to revise their votes, commencing, as before, with the junior member.

15.

Witnesses intended to be examined must not be admitted into Court until called; and in their examination the following method shall be observed: First, such as are in support of the Charge are to be questioned by the Prosecutor (if there be one), by the Court, or Judge-Advocate, and afterwards by the Prisoner; then such as are produced on the part of the accused are to be examined, and the Prisoner is to begin with his questions if he shall think fit. If a question proposed be objected to, the opinion of the Court shall be taken, and the question shall be admitted or rejected, as the majority shall agree.

16.

The Prosecutor is to be considered as a competent witness; but, where there are other witnesses to the facts, his evidence shall be taken first. He may be recalled, for cross-examination, by the Court, or by the Prisoner, during any part of the proceedings, but not for the purpose of giving evidence on any new matter.

17.

The Court, or the Judge-Advocate (with the consent of the Court), may recall a Witness at any period of the trial: and may before the opening of the case for the defence, call and examine any other person touching the matter in question, whose evidence the Court may deem necessary for the furtherance of the ends of justice; and may also, after the close of the case for the defence, call and examine any other person, whose evidence the Accused may show to the Court to be material in his behalf.

18.

When the Evidence is closed, the Prisoner shall be removed, and the Prosecutor and bystanders shall withdraw. The Court shall then consider the matter in evidence before it, and the Judge-Advocate, by the direction of the Court, shall draw up such questions as shall be agreed upon, whereon to form a determination in regard to the innocence or guilt of the Prisoner. If the Prisoner be found guilty of a breach of any of the Articles of War established by law, the Court shall consider and determine on the punishment proper to be inflicted in conformity therewith. The Judge Advocate shall draw up the sentence accordingly, being careful to specify therein the charge, or substance of it; and the same shall be signed by every member of the Court, by way of attestation, notwithstanding any difference of opinion there may have been among the members.

19.

After the Sentence shall have been drawn up and signed, all persons shall be re-admitted, and the Prisoner being also present, the Judge-Advocate shall, by direction of the Court, pronounce the same.

20.

Immediately the Court-Martial is over, the Judge-Advocate is to deliver to the President, the original, or a copy of the sentence (according to circumstances, as explained in the following Article), who is to wait upon the Commander-in-chief or senior Officer present with the same.

21.

The original Minutes of the Evidence and Proceedings, and the Sentence passed by the Court-Martial, shall be transmitted, by the Judge-Advocate to the Commander-in-chief, or senior Officer present, as directed in the 59th section of the Naval Discipline Act, to be, by such Commander-in-chief or senior Officer, forwarded to the Secretary of the Admiralty.

If the Court Martial shall have been held at a place distant from the Commander-in-chief, and the senior Officer present shall deem it expedient to transmit the minutes and sentence direct to the Admiralty, - the Judge-Advocate shall make a copy thereof, to be forwarded by him to the Commander in-chief; but where the authority of the Commander-in- chief is required to carry the sentence into execution, the original proceedings and finding of the Court must be sent to that Officer in the first instance, and copies thereof furnished to the Admiralty.

22.

When Sentence of Death is to be executed, or other public punishment inflicted, upon any Criminal, notice shall be first given from the Ship by a signal and by firing a gun, upon which the Captains of all Ships present shall summon their companies upon deck to witness the punishment, and shall make known to them the crime for which it is about to be inflicted.

23.

When the Sentence of a Court-Martial awards Corporal Punishment, the Commander-in-chief, or other Officer, whose duty it may be to have the Sentence carried into effect, is to cause such punishment to be inflicted forthwith, or as soon as the convenience of the Service will admit; excepting only in cases where he may see reason, from the state of health of the Prisoner, or other sufficient cause, to defer ordering such punishment.

24.

When a Court-Martial awards Imprisonment, either with or without hard labour, such Imprisonment shall be expressed as commencing from the date of the sentence.

25.

The pecuniary allowance to the Deputy Judge-Advocate, or to an Officiating Judge-Advocate, of a Court-Martial, shall be as follows, viz.:

	£	s.	d.	To be paid by the Paymaster of the Flag Ship at the Port where the Court- Martial is assembled
If the Court shall sit one day only	4	0	0
If more than one day, then for each day	3	0	0
The Pay of a Provost-Marshal shall be
For each day the Court sits	0	10	0
For each day, exclusive of those days on which the Court has sat, during which he may have a Prisoner in his charge, for each Prisoner.*	0	4	0

*But not to be paid, for any one day, whatever number of Prisoners may be in his charge beyond five, more than the sum. of One Pound.

26.

The payment of reasonable expenses of Witnesses who may not be subject to the Naval Discipline Act, summoned to give evidence at a Court-Martial, is to be made by the Judge-Advocate, who is to be repaid, under the direction of the President, by the Paymaster of the Flag Ship, at the Port where the Court-Martial is assembled; and the Judge-Advocate is to report to the Secretary of the Admiralty the particulars of all such payments, when the Minutes of the Proceedings are forwarded, or as soon after as may be.