Criminal Procedure and Investigations Act 1996 (Application to the Armed Forces) Order 2008 (S.I. 2008/635)

4.1 The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

4.2 This Order, which came into force on 1 April 2008, makes provision as to disclosure by the parties in proceedings before a court-martial or a Standing Civilian Court. Article 20(1) states that the rules of common law which were effective immediately before 1 January 2008 and which relate to the disclosure of material by the prosecutor do not apply as regards things falling to be done after that time in relation to the alleged offence.

4.3 In a memorandum printed at Appendix 4, the Ministry of Defence states that the date in article 20(1) should have been 1 April 2008, and the Committee accordingly reports article 20(1) for defective drafting, acknowledged by the Department.

4.4 The Department states that it is content to take immediate steps to amend article 20, but asks the Committee to agree that it would be appropriate for the necessary correction not to be made until the Order is replaced or amended for the purposes of the introduction of the Armed Forces Act 2006, which intended to come into force on 1 January 2009. The Department has considered whether there was any change to the common law rules on prosecution disclosure between 1 January and 1 April, and does not consider that there has been any change during that period.

4.5 In the Committee's view it would be unsatisfactory for the Order to remain unamended until 2009. The applicable common law rules cannot be regarded as fixed in the same way as statute and accordingly, while the Department may well be correct that there was no change in the relevant common law rules in the first three months of this year, the possibility that there has been a change of which it is unaware cannot be ruled out. The Order relates to criminal proceedings, and should not be left with a defect of this nature for longer than is necessary. An amending instrument (issued free of charge to known purchasers of this Order) would be quick, easy and inexpensive to make, and the Committee accordingly urges the Department to make it without delay.