type: legislation

jurisdiction: UK

text:
PART 1 Introduction
Citation, commencement, application and interpretation
1
1
These Regulations may be cited as the National Health Service (Pharmaceutical Services) (Appliances) (Amendment) Regulations 2009 and come into force on 1st April 2010.
2
These Regulations apply in relation to England.
3
In these Regulations, the “ principal Regulations ” means the National Health Service (Pharmaceutical Services) Regulations 2005 .
PART 2 New definitions in the principal Regulations
Amendment of regulation 2
2
In regulation 2(1) (interpretation) of the principal Regulations, in the appropriate alphabetical position, insert —
“appliance use review service” means arrangements made in accordance with section 127 of the 2006 Act for a pharmacist or specialist nurse to review a person’s use of any specified appliance;
;
“specified appliance” means —
any of the following appliances listed in Part IXA of the Drug Tariff —
a catheter appliance (including a catheter accessory and maintenance solution),
a laryngectomy or tracheostomy appliance,
an anal irrigation system,
a vacuum pump or constrictor ring for erectile dysfunction, or
a wound drainage pouch;
an incontinence appliance listed in Part IXB of the Drug Tariff; or
a stoma appliance listed in Part IXC of the Drug Tariff;
;
“stoma appliance customisation” means the customisation of a quantity of more than one stoma appliance, where —
the stoma appliances to be customised are listed in Part IXC of the Drug Tariff;
the customisation involves modification to the same specification of multiple identical parts for use with each appliance; and
that modification is based on the patient’s measurements or a record of those measurements and, if applicable, a template;
; and
“supplier of appliances” means a person with whom a Primary Care Trust has entered into arrangements for the provision of pharmaceutical services, being arrangements which are incorporated into terms of service as a consequence of regulation 3(c);
.
PART 3 Amendments to the terms of service of pharmacists
Amendments to Schedule 1 to the principal Regulations
3
Schedule 1 to the principal Regulations is amended in accordance with regulations 4 to 11.
Amendment of paragraph 6
4
For paragraph 6 substitute —
Urgent supply without a prescription
6
1
This paragraph applies where, in a case of urgency, a prescriber requests a pharmacist to provide a drug or appliance.
2
The pharmacist may provide the drug or appliance requested before receiving a prescription form or repeatable prescription in respect of that drug or appliance, provided that —
a
in the case of a request for a drug, the drug is neither —
i
a Scheduled drug, nor
ii
a controlled drug within the meaning of the Misuse of Drugs Act 1971 , other than a drug which is for the time being specified in Schedule 4 or 5 to the Misuse of Drugs Regulations 2001 ; and
b
in the case of a request for a drug or an appliance, the prescriber undertakes to —
i
give the pharmacist a non-electronic prescription form or non-electronic repeatable prescription in respect of the drug or appliance within 72 hours of the request being made, or
ii
transmit an electronic prescription to the ETP service within 72 hours of the request being made.
.
Amendment of paragraph 9
5
In paragraph 9 (refusal to provide drugs or appliances ordered), in sub-paragraph (4)(b), after “the medication regimen of” insert “, or manner of utilisation of the appliance by,”.
Amendment of paragraph 10
6
1
Amend paragraph 10 (further activities to be carried out in connection with the provision of dispensing services) as follows.
2
Renumber the existing provision as sub-paragraph (1).
3
In that sub-paragraph —
a
for paragraph (c) substitute —
c
when providing drugs to patients in accordance with a repeatable prescription, provide appropriate advice in particular on the importance of only requesting those items which they actually need;
ca
when providing appliances to patients in accordance with a prescription form or repeatable prescription —
i
provide appropriate advice in particular on the importance of only requesting those items which they actually need, and
ii
for those purposes, have regard to the details contained in the records maintained under paragraph (e) in respect of the provision of appliances and prescribing pattern relating to the patient in question;
;
b
omit “and” at the end of paragraph (l); and
c
after paragraph (m) insert —
n
when providing appliances, provide a patient with a written note of the pharmacist’s name, address and telephone number; and
o
when providing specified appliances, comply with the additional requirements set out in paragraph 11A.
.
4
After sub-paragraph (1) insert —
2
Where, on presentation of a prescription form or repeatable prescription in connection with dispensing services under paragraph 4, a pharmacist is unable to provide an appliance, or stoma appliance customisation is required and the pharmacist is unable to provide that, the pharmacist shall —
a
if the patient consents, refer the prescription form or repeatable prescription to another pharmacist or to a supplier of appliances; and
b
if the patient does not consent to a referral, provide the patient with contact details of at least two people who are pharmacists or suppliers of appliances who are able to provide the appliance or stoma appliance customisation (as the case may be), if these details are known to the pharmacist.
.
Insertion of new paragraph 11A
7
After paragraph 11 insert —
Additional requirements in relation to specified appliances
11A
1
This paragraph sets out the additional requirements referred to in paragraph 10(1)(o) relating to the provision of specified appliances.
2
A pharmacist who dispenses specified appliances in the normal course of business shall provide a home delivery service in respect of those appliances and, as part of that service —
a
the pharmacist must offer to deliver the specified appliance to the patient’s home;
b
if the patient accepts that offer, the delivery must be made with reasonable promptness and at such time as is agreed with the patient;
c
the specified appliance must be delivered in a package which displays no writing or other markings which could indicate its content; and
d
the manner of delivery of the package and any supplementary items required by sub-paragraph (3) must not convey the type of appliance being delivered.
3
In any case where a specified appliance is provided (whether by home delivery or otherwise), the pharmacist shall provide a reasonable supply of appropriate supplementary items (such as disposable wipes and disposal bags) and —
a
shall ensure that the patient may, if the patient wishes, consult a person to obtain expert clinical advice regarding the appliance; or
b
if the pharmacist believes it is appropriate to do so, shall —
i
refer the patient to a prescriber, or
ii
offer the patient an appliance use review service.
4
If the pharmacist is unable to provide an appliance use review service in accordance with sub-paragraph (3)(b)(ii), the pharmacist must give the patient the contact details of at least two people who are pharmacists or suppliers of appliances who are able to arrange for the service to be provided, if these details are known to the pharmacist.
5
Where a pharmacist provides a telephone care line in respect of the dispensing of any specified appliance, the pharmacist shall ensure that during out of hours periods —
a
advice is made available to patients through that telephone care line; or
b
the telephone number of NHS Direct National Health Service Trust , or the website address of NHS Direct National Health Service Trust on line, are made available to patients through that telephone care line.
6
For the purposes of this paragraph —
“expert clinical advice”, in relation to a specified appliance, means advice which is given by a person who is suitably trained and who has relevant experience in respect of the appliance;
“out of hours periods”, in relation to a pharmacy, means the periods outside the periods during which the pharmacist —
is obliged to provide pharmaceutical services at the pharmacy by virtue of paragraph 22(1) or 25A(1); or
does provide pharmaceutical services at the pharmacy in accordance with a notification under paragraph 22(1A).
.
Amendment of paragraph 19
8
1
Amend paragraph 19 (service outline in respect of signposting) as follows.
2
After sub-paragraph (1) insert —
1A
Where, on presentation of a prescription form or repeatable prescription, a pharmacist is unable to provide an appliance or stoma appliance customisation because the provision of the appliance or customisation is not within the pharmacist’s normal course of business, the pharmacist shall —
a
if the patient consents, refer the prescription form or repeatable prescription to another pharmacist or to a supplier of appliances; and
b
if the patient does not consent to a referral, provide the patient with contact details of at least two people who are pharmacists or suppliers of appliances who are able to provide the appliance or stoma appliance customisation (as the case may be), if these details are known to the pharmacist.
.
3
In sub-paragraph (3), after “under paragraph (1)” insert “or (1A)”.
Amendment of paragraph 26
9
In paragraph 26 (clinical governance), in sub-paragraph (2), for paragraph (d) substitute —
d
a clinical effectiveness programme, which includes arrangements for ensuring that appropriate advice is given by a pharmacist —
i
in respect of the provision of drugs in accordance with a repeatable prescription,
ii
in respect of the provision of appliances in accordance with a prescription form or repeatable prescription, or
iii
to people caring for themselves or their families,
and arrangements for ensuring that the pharmacist, when giving advice to any patient on a matter mentioned in paragraph (d)(ii), has regard to the details contained in the records maintained under paragraph 10(1)(e) in respect of the provision of appliances and the prescribing pattern relating to the patient in question;
.
Amendment of paragraph 28
10
After paragraph 28(5) (inducements etc. ) insert —
6
In the case of the provision of appliances, neither a pharmacist nor any person employed or engaged by a pharmacist shall accept or receive any gift or reward in respect of only —
a
providing contact details of alternative pharmacists or suppliers of appliances pursuant to paragraph 10(2)(b), 11A(4) or 19(1A)(b); or
b
referring a prescription form or repeatable prescription to another pharmacist or supplier of appliances pursuant to paragraph 10(2)(a) or 19(1A)(a) and providing no additional service in connection with the item on that prescription.
.
Amendment of paragraph 37
11
In paragraph 37(1) (inspections and access to information), in paragraph (b)(i), after “patient care and treatment,” insert “including any arrangement made with a person in respect of provision of appliances,”.
PART 4 Amendments to the terms of service of suppliers of appliances
Amendments to Schedule 3 to the principal Regulations
12
Schedule 3 to the principal Regulations is amended in accordance with regulations 13 to 22.
Amendment of paragraph 4
13
1
Amend paragraph 4 (dispensing of appliances) as follows.
2
In sub-paragraph (2), for “paragraphs 5 to 7” substitute “the following provisions of this Schedule”.
3
After sub-paragraph (2) insert —
3
Subject to the following provisions of this Schedule, where —
a
any person presents a non-electronic repeatable prescription which contains —
i
an order for appliances, not being restricted availability appliances, signed by a repeatable prescriber, or
ii
an order for a restricted availability appliance, signed by a repeatable prescriber and including the reference “SLS”,
and also presents an associated batch issue; or
b
a supplier of appliances receives from the ETP service an electronic repeatable prescription which contains an order of a kind specified in paragraph (a)(i) or (ii) and —
i
any person requests the provision of appliances in accordance with that prescription, or
ii
the supplier of appliances has previously arranged with the patient that the supplier will dispense that prescription on receipt,
the supplier of appliances shall, with reasonable promptness, provide such of the appliances so ordered as the supplier supplies in the normal course of business.
4
For the purposes of this paragraph, a non-electronic repeatable prescription for appliances shall be taken to be presented even if the person who wishes to obtain the appliances does not present that prescription, where —
a
the supplier of appliances has that prescription in the supplier’s possession; and
b
that person presents, or the supplier of appliances has in the supplier’s possession, an associated batch issue.
.
Insertion of new paragraph 4A
14
After paragraph 4 insert —
Urgent supply without a prescription
4A
1
This paragraph applies where, in a case of urgency, a prescriber requests a supplier of appliances to provide an appliance.
2
The supplier of appliances may provide the appliance requested before receiving a prescription form or repeatable prescription in respect of that appliance, provided that the prescriber undertakes to —
a
give the supplier of appliances a non-electronic prescription form or non-electronic repeatable prescription in respect of the appliance within 72 hours of the request being made; or
b
transmit an electronic prescription to the ETP service within 72 hours of the request being made.
.
Amendment of paragraph 5
15
1
Amend paragraph 5 (preliminary matters before providing appliances) as follows.
2
In sub-paragraph (1), for the words from “If the person” to “an electronic prescription form” substitute “If a person specified in sub-paragraph (1A)”.
3
After sub-paragraph (1) insert —
1A
A person specified in this sub-paragraph is a person —
a
presenting a non-electronic prescription form or non-electronic repeatable prescription; or
b
requesting the provision of appliances in accordance with an electronic prescription form or an electronic repeatable prescription.
.
4
In sub-paragraph (2) —
a
after “in accordance with a prescription form” insert “or repeatable prescription”;
b
in paragraph (a), after “named on the prescription form” insert “or repeatable prescription”;
c
in paragraph (b), after “in the case of a non-electronic prescription form” insert “or non-electronic repeatable prescription”; and
d
in paragraph (c), after “in the case of an electronic prescription form” insert “or an electronic repeatable prescription”.
Amendment of paragraph 6
16
1
Amend paragraph 6 (providing appliances) as follows.
2
For sub-paragraph (1) substitute —
1
Where a supplier of appliances is presented with, or receives from the ETP service, a prescription form or a repeatable prescription, the supplier of appliances shall only provide the appliances so ordered —
a
if the prescription form or repeatable prescription is duly signed and completed as described in paragraph 4; and
b
in accordance with the order on the prescription form or repeatable prescription,
subject to any regulations in force under the Weights and Measures Act 1985 and the following provisions of this Schedule.
.
3
In sub-paragraph (2)(a), after “named on the prescription form” insert “or repeatable prescription”.
Amendment of paragraph 7
17
1
Amend paragraph 7 (refusal to provide appliances ordered) as follows.
2
Renumber the existing provision as sub-paragraph (1).
3
In that sub-paragraph —
a
after “ordered on a prescription form” insert “or repeatable prescription”;
b
in paragraph (a), after “the prescription form” insert “or repeatable prescription”;
c
for paragraph (b), substitute —
b
it appears to the supplier of appliances that there is an error on the prescription form or on the repeatable prescription or, in the case of a non-electronic repeatable prescription, its associated batch issue (including a clinical error made by the prescriber) or that, in the circumstances, providing the appliance would be contrary to the clinical judgement of the supplier of appliances;
; and
d
in paragraphs (c) and (d) —
i
after each reference to “the prescription form” insert “or repeatable prescription”, and
ii
after each reference to “an electronic prescription form” insert “or repeatable prescription”.
4
After sub-paragraph (1) insert —
2
A supplier of appliances shall refuse to provide appliances ordered on a repeatable prescription where —
a
the supplier has no record of that prescription;
b
the supplier does not, in the case of a non-electronic repeatable prescription, have any associated batch issue and it is not presented to the supplier;
c
it is not signed by a repeatable prescriber;
d
to do so would not be in accordance with any intervals specified in the prescription;
e
it would be the first time an appliance had been provided pursuant to the prescription and the prescription was signed (whether electronically or otherwise) more than six months previously;
f
the repeatable prescription was signed (whether electronically or otherwise) more than one year previously;
g
the expiry date on the repeatable prescription has passed; or
h
the supplier has been informed by the repeatable prescriber that the prescription is no longer required.
3
Where a patient requests the supply of appliances ordered on a repeatable prescription (other than on the first occasion that the request is made), a supplier of appliances shall only provide the appliance ordered if satisfied that —
a
the patient to whom the prescription relates —
i
is using and is likely to continue to use the appliance appropriately, and
ii
is not suffering from any side effects of the treatment which indicate the need or desirability of reviewing the patient’s treatment;
b
the manner of utilisation of the appliance by the patient to whom the prescription relates has not altered in a way which indicates the need or desirability of reviewing the patient’s treatment; and
c
there have been no changes to the health of the patient to whom the prescription relates which indicate the need or desirability of reviewing the patient’s treatment.
Amendment of paragraph 8
18
1
Amend paragraph 8 (further activities to be carried out in connection with the provision of dispensing services) as follows.
2
Renumber the existing provision as sub-paragraph (1).
3
In that sub-paragraph, for paragraphs (c) to (e) substitute —
c
when providing appliances to patients in accordance with a prescription form or repeatable prescription —
i
provide appropriate advice in particular on the importance of only requesting those items which they actually need, and
ii
for those purposes, have regard to the details contained in the records maintained under paragraph (f) in respect of the provision of appliances and prescribing pattern relating to the patient in question;
d
provide a patient with a written note of any appliance which is owed, and inform the patient when it is expected that the appliance will become available;
e
provide a patient with a written note of the supplier’s name, address and telephone number;
f
keep and maintain records —
i
of appliances provided, in order to facilitate the continued care of the patient,
ii
in appropriate cases, of advice given and any interventions or referrals made (including clinically significant interventions in cases involving repeatable prescriptions), and
iii
of notes provided under paragraph (d);
g
undertake appropriate training in respect of repeat dispensing, having regard to any recommendations in respect of such training set out in the Drug Tariff;
h
if the supplier takes possession of a non-electronic repeatable prescription or an associated batch issue, securely store that repeatable prescription or associated batch issue;
i
if the supplier provides an appliance under an electronic prescription, provide the patient, if the patient so requests, with a written record of the appliances ordered on that prescription and, in the case of an electronic repeatable prescription, of the number of occasions on which it can be dispensed;
j
maintain records of repeatable prescriptions in such a form as to provide a clear audit trail of supplies under the repeatable prescription (including dates and quantities supplied);
k
destroy any surplus batch issues relating to appliances —
i
which are not required, or
ii
where a patient is refused an appliance pursuant to paragraph 7;
l
ensure that where a person is refused appliances pursuant to paragraph 7(1)(b), (2) or (3), the patient is referred back to the prescriber for further advice;
m
where a patient is provided with appliances under a repeatable prescription, notify the prescriber of any clinically significant issues arising in connection with the prescription and keep a record of that notification;
n
notify the prescriber of any refusal to provide appliances pursuant to paragraph 7(3); and
o
when providing specified appliances, comply with the additional requirements set out in paragraph 9A.
.
4
After sub-paragraph (1) insert —
2
Where, on presentation of a prescription form or repeatable prescription in connection with the dispensing of appliances under paragraph 4, a supplier of appliances is unable to provide an appliance, or stoma appliance customisation is required and the supplier of appliances is unable to provide that, the supplier of appliances shall —
a
if the patient consents, refer the prescription form or repeatable prescription to another supplier of appliances or to a pharmacist; or
b
if the patient does not consent to a referral, provide the patient with contact details of at least two people who are pharmacists or suppliers of appliances who are able to provide the appliance or stoma appliance customisation (as the case may be), if these details are known to the supplier.
.
Insertion of new paragraphs 9A and 9B
19
After paragraph 9 insert —
Additional requirements in relation to specified appliances
9A
1
This paragraph sets out the additional requirements referred to in paragraph 8(1)(o) relating to the provision of specified appliances.
2
A supplier of appliances who dispenses specified appliances in the normal course of business shall provide a home delivery service in respect of those appliances and, as part of that service —
a
the supplier of appliances must offer to deliver the specified appliance to the patient’s home;
b
if the patient accepts that offer, the delivery must be made with reasonable promptness and at such time as is agreed with the patient;
c
the specified appliance must be delivered in a package which displays no writing or other markings which could indicate its content; and
d
the manner of delivery of the package and any supplementary items required by sub-paragraph (3) must not convey the type of appliance being delivered.
3
In any case where a specified appliance is provided (whether by home delivery or otherwise), the supplier of appliances shall provide a reasonable supply of appropriate supplementary items (such as disposable wipes and disposal bags) and —
a
shall ensure that the patient may, if the patient wishes, consult a person to obtain expert clinical advice regarding the appliance; or
b
if the supplier of appliances believes it is appropriate to do so, shall —
i
refer the patient to a prescriber, or
ii
offer the patient an appliance use review service.
4
If the supplier of appliances is unable to provide an appliance use review service in accordance with sub-paragraph (3)(b)(ii), the supplier must give the patient the contact details of at least two people who are pharmacists or suppliers of appliances who are able to arrange for the service to be provided, if these details are known to the supplier of appliances.
5
Where a supplier of appliances provides a telephone care line in respect of the dispensing of any specified appliance, the supplier shall ensure that during out of hours periods —
a
advice is made available to patients through that telephone care line; or
b
the telephone number of NHS Direct National Health Service Trust, or website address of NHS Direct National Health Service Trust on line, are made available to patients through the telephone care line.
6
For the purposes of this paragraph —
“expert clinical advice”, in relation to a specified appliance, means advice which is given by a person who is suitably trained and who has relevant experience in respect of the appliance;
“out of hours periods”, in relation to each of the premises from which a supplier of appliances has undertaken to provide pharmaceutical services, means the periods outside the periods during which the supplier of appliances is obliged to provide pharmaceutical services by virtue of paragraph 10 or 13A.
Signposting
9B
1
Where, on presentation of a prescription form or repeatable prescription, a supplier of appliances is unable to provide an appliance or stoma appliance customisation because the provision of the appliance or customisation is not within the supplier’s normal course of business, the supplier of appliances shall —
a
if the patient consents, refer the prescription form or repeatable prescription to another supplier of appliances or to a pharmacist; and
b
if the patient does not consent to a referral, provide the patient with contact details of at least two people who are pharmacists or suppliers of appliances who are able to provide the appliance or stoma appliance customisation (as the case may be), if these details are known to the supplier.
2
The supplier of appliances shall, in appropriate cases, keep and maintain a record of any information given or referral made under sub-paragraph (1) and that record shall be in a form that facilitates —
a
auditing of the provision of pharmaceutical services by the supplier of appliances; and
b
follow-up care for the person who has been given the information or in respect of whom the referral has been made.
.
Insertion of new paragraph 13A
20
After paragraph 13 insert —
Clinical governance
13A
1
A supplier of appliances shall, in connection with all the pharmaceutical services the supplier of appliances provides, participate, in the manner reasonably required by the Primary Care Trust, in an acceptable system of clinical governance.
2
For these purposes a system of clinical governance is “acceptable” if it is considered acceptable by the Secretary of State and comprises the following components —
a
a patient and public involvement programme, which includes —
i
a requirement that the supplier of appliances produces in an approved manner a practice leaflet containing approved particulars in respect of each of the premises from which the supplier provides pharmaceutical services,
ii
a requirement that the supplier of appliances publicises the NHS services that are available at or from such premises,
iii
a requirement that the supplier of appliances undertakes an approved patient satisfaction survey annually, in an approved manner,
iv
the monitoring arrangements of the supplier of appliances in respect of appliances owed to patients but which are out of stock,
v
an approved complaints system (which meets the requirements of this Schedule),
vi
a requirement that the supplier of appliances co-operates appropriately with visits by an authorised representative of any relevant local involvement network and takes appropriate action following the outcome of such visits,
vii
a requirement that the supplier of appliances co-operates appropriately with any reasonable inspection or review that the Primary Care Trust or any relevant statutory authority wishes to undertake, and
viii
the monitoring arrangements of the supplier of appliances in respect of the supplier’s compliance with the Disability Discrimination Act 1995 ;
b
a clinical audit programme (normally of five days) twice in each financial year;
c
a risk management programme, which includes —
i
arrangements for ensuring that all stock is procured and handled in an appropriate way,
ii
arrangements for ensuring that all equipment used in the provision of pharmaceutical services is maintained appropriately,
iii
an approved incident reporting system, together with arrangements for analysing and responding to critical incidents,
iv
appropriate standard operating procedures, including standard operating procedures in respect of dispensing appliances, repeatable prescriptions and providing advice and support to people caring for themselves or their families,
v
appropriate waste disposal arrangements for clinical and confidential waste,
vi
identifying a clinical governance lead person in respect of each of the premises from which the supplier provides pharmaceutical services,
vii
appropriate child protection procedures, and
viii
the monitoring arrangements of the supplier of appliances in respect of the supplier’s compliance with the Health and Safety at Work etc. Act 1974 ;
d
a clinical effectiveness programme, which includes arrangements for ensuring that appropriate advice is given by a supplier of appliances —
i
in respect of the provision of appliances in accordance with a prescription form or repeatable prescription, or
ii
to people caring for themselves or their families,
and arrangements for ensuring that the supplier, when giving advice to any patient on a matter mentioned in paragraph (d)(i), has regard to the details contained in the records maintained under paragraph 8(1)(f) in respect of the provision of appliances and prescribing pattern relating to the patient in question;
e
a staffing and staff management programme, which includes —
i
arrangements for appropriate induction for staff and locums,
ii
appropriate training for all staff in respect of any role they are asked to perform,
iii
arrangements for the checking of qualifications and references of all staff engaged in the provision of NHS services,
iv
arrangements for identifying and supporting the development needs of all staff engaged in the provision of services as part of the health service, including continuing professional development for registered pharmacists, registered nurses and registered pharmacy technicians and any necessary accreditation in respect of the provision of directed services, and
v
arrangements for addressing poor performance (in conjunction with a Primary Care Trust as appropriate); and
f
a use of information programme, which includes —
i
appropriate arrangements (having regard to issues both of rights of access to information and of confidentiality) to support both health care delivery and clinical governance,
ii
appropriate arrangements in respect of compliance with “Confidentiality: the National Health Service Code of Practice” ,
iii
the monitoring arrangements of the supplier of appliances in respect of the supplier’s compliance with the Data Protection Act 1998 and with regard to patient confidentiality, and
iv
appropriate training for staff with regard to compliance with the Data Protection Act 1998 and patient confidentiality.
3
For the purposes of sub-paragraph (2), “approved” means approved by the Secretary of State.
.
Amendments of paragraph 15
21
1
Amend paragraph 15 (inducements etc.) as follows.
2
In sub-paragraph (1) —
a
for “A supplier of appliances or his staff shall not give” substitute “Neither a supplier of appliances nor any person employed or engaged by a supplier of appliances shall give”; and
b
in paragraph (a), after “a prescription form” insert “or repeatable prescription”.
3
After sub-paragraph (2) insert —
3
Neither a supplier of appliances nor any person employed or engaged by a supplier of appliances shall accept or receive any gift or reward in respect of only —
a
providing contact details of alternative pharmacists or suppliers of appliances pursuant to paragraph 8(2)(b), 9A(4) or 9B(1)(b); or
b
referring a prescription form or repeatable prescription to another supplier of appliances or pharmacist pursuant to paragraph 8(2)(a) or 9B(1)(a) and providing no additional service in connection with the item on that prescription.
.
Amendment of paragraph 24
22
In paragraph 24(1) (inspections and access to information), in paragraph (b)(i), after “patient care and treatment,” insert “including any arrangement made with a person in respect of provision of appliances,”.
PART 5 Transitional arrangement
Transitional arrangement
23
1
This regulation has effect only in relation to the provision of pharmaceutical services at any time before the end of the transitional period by any pharmacist or supplier of appliances whose name was, immediately before 1st April 2010, already on a pharmaceutical list maintained by a Primary Care Trust under the principal Regulations.
2
Subject to paragraph (3), during the transitional period the pharmacist or supplier of appliances is not bound by such amendments to terms of service as are made by these Regulations, if they choose instead to comply with the terms of service as they had effect prior to those amendments (in these circumstances, the terms of service that are binding upon them are the terms of service as they had effect on 31st March 2010).
3
Paragraph (2) does not apply in any case where the pharmacist or supplier of appliances proposes to enter into new arrangements, which are to be made in accordance with the Pharmaceutical Services (Advanced Services) (Appliances) (England) Directions 2009 , to provide services for stoma appliance customisation or appliance use reviews (or has entered into such arrangements).
4
Nothing in this regulation affects the duty of a pharmacist or supplier of appliances —
a
before the end of the transitional period, to comply with the terms of service as they otherwise have effect; and
b
at or after the end of the transitional period, to comply with the terms of service as amended by these Regulations.
5
In this regulation —
“the terms of service” —
in relation to a pharmacist, means the terms of service set out in Schedule 1 to the principal Regulations;
in relation to a supplier of appliances, means the terms of service set out in Schedule 3 to the principal Regulations; and
“transitional period” means the nine month period that ends at the end of 31st December 2010.
Signed by authority of the Secretary of State for Health.
Mike O’Brien
Minister of State,
Department of Health
16th December 2009


text:
Citation and commencement
1
This Order may be cited as the Landsbanki Freezing (Revocation) Order 2009 and comes into force on 15th June 2009.
Revocations
2
The following Orders are revoked —
a
the Landsbanki Freezing Order 2008 ;
b
the Landsbanki Freezing (Amendment) Order 2008 .
Frank Roy
Tony Cunningham
Two of the Lords Commissioners of Her Majesty’s Treasury
10th June 2009


text:
PART 1 Preliminary
Citation, commencement, application and revocations
1
1
This Order may be cited as the Court Martial (Prosecution Appeals) Order 2009 and shall come into force on 31st October 2009.
2
This Order shall only apply in relation to trial proceedings which commence after commencement.
3
For the purposes of this Order, trial proceedings commence immediately after the last court member has been sworn.
4
The 2006 Order and the Courts-Martial (Prosecution Appeals) (Supplementary Provisions) Order 2006 are revoked.
Interpretation
2
1
In this Order —
“the 1968 Act ” means the Court Martial Appeals Act 1968 ;
“the 2006 Act ” means the Armed Forces Act 2006;
“the 2006 Order” means the Courts-Martial (Prosecution Appeals) Order 2006 ;
“accused” means a party in whose favour the ruling which is the subject of the appeal was made;
“appeal” means an appeal against a ruling to which article 4(1) applies and “application for leave to appeal” should be construed accordingly;
“charge” means a charge regarded for the purposes of Part 5 of the 2006 Act as allocated for Court Martial trial;
“commencement” means the date on which this Order comes into force;
“ the Director ” means the Director of Service Prosecutions;
“ DX ” means document exchange;
“interested party” means a person other than the accused who —
is a party to the trial proceedings;
may be affected by the decision of the judge advocate under article 5(1) as to whether or not the appeal should be expedited; and
is permitted by the judge advocate or the Court Martial Appeal Court to make representations on that issue;
“the judge advocate” in relation to any proceedings, means the judge advocate specified for the proceedings under section 155(5) of the Armed Forces Act 2006;
“legal representative” means a person appointed under article 12;
“live link” means an arrangement by which a person, when not in the place where proceedings are being held, is able to see and hear, and to be seen and heard by, the court during proceedings (and for this purpose any impairment of eyesight or hearing is to be disregarded);
“programme service” has the same meaning as in the Broadcasting Act 1990 ;
“public interest ruling” means an order under article 4(6), 13(8) or 14(5) of the Criminal Procedure and Investigations Act 1996 (Application to the Armed Forces) Order 2009 ;
“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme is to be taken to be so addressed), but does not include a charge sheet or other document prepared for use in particular legal proceedings;
“the registrar” means the registrar of the Court Martial Appeal Court;
“relevant programme” means a programme included in a programme service;
“relevant time” means a time when events giving rise to the charges to which the proceedings relate are alleged to have occurred;
“ruling” includes a decision, determination, direction, finding, notice, order, refusal, rejection or requirement;
“a single judge” means a single judge of the Court Martial Appeal Court;
“trial proceedings” has the same meaning as in rules made under section 163 of the 2006 Act.
PART 2 Prosecution Appeals
Prosecution rights of appeal
3
1
In relation to trial proceedings, the Director is to have the rights of appeal for which provision is made by this Order.
2
But the Director is to have no right of appeal under this Order in respect of —
a
a ruling that all lay members of the court be discharged; or
b
a ruling from which an appeal lies to the Court Martial Appeal Court by virtue of any other enactment.
3
An appeal under this Order is to lie to the Court Martial Appeal Court.
4
Such an appeal may be brought only with the leave of the judge advocate or the Court Martial Appeal Court.
General right of appeal in respect of rulings
4
1
This article applies where a judge advocate makes a ruling in relation to trial proceedings at an applicable time and the ruling relates to one or more of the charges being tried.
2
The Director may appeal in respect of the ruling in accordance with this article.
3
The ruling is to have no effect whilst the Director is able to take any steps under paragraph (4).
4
The Director may not appeal in respect of the ruling unless following the making of the ruling he —
a
informs the court that he intends to appeal; or
b
requests an adjournment to consider whether to appeal and, if such an adjournment is granted, informs the court following the adjournment that he intends to appeal.
5
Where the ruling relates to two or more charges —
a
any one or more of those charges may be the subject of the appeal; and
b
if the Director informs the court in accordance with paragraph (4) that he intends to appeal, he must at the same time inform the court of the charge or charges which are the subject of the appeal.
6
Where —
a
the ruling is a ruling that there is no case to answer, and
b
the Director, at the same time that he informs the court in accordance with paragraph (4) that he intends to appeal, nominates one or more other rulings which have been made by the judge advocate in relation to the trial proceedings at an applicable time and which relate to the charge or charges which are the subject of the appeal,
that other ruling, or those other rulings, are also to be treated as the subject of the appeal.
7
The Director may not inform the court in accordance with paragraph (4) that he intends to appeal, unless, at or before that time, he informs the court that he agrees that, in respect of the charge or each charge which is the subject of the appeal, the accused in relation to that charge should be acquitted of that charge if either of the conditions mentioned in paragraph (8) is fulfilled.
8
Those conditions are —
a
that leave to appeal to the Court Martial Appeal Court is not obtained; and
b
that the appeal is abandoned before it is determined by the Court Martial Appeal Court.
9
If the Director informs the court in accordance with paragraph (4) that he intends to appeal, the ruling mentioned in paragraph (1) is to continue to have no effect in relation to the charge or charges which are the subject of the appeal whilst the appeal is pursued.
10
If and to the extent that a ruling has no effect in accordance with this article —
a
any consequences of the ruling are also to have no effect;
b
the judge advocate may not take any steps in consequence of the ruling; and
c
if he does so, any such steps are also to have no effect.
11
Where the Director has informed the court of his agreement under paragraph (7) and either of the conditions mentioned in paragraph (8) is fulfilled, the judge advocate or the Court Martial Appeal Court must order that the accused in relation to the charge or each charge concerned be acquitted of that charge and, where appropriate, that he be released from custody.
12
In this article “applicable time”, in relation to particular trial proceedings, means any time after the commencement of those trial proceedings and before the time when the judge advocate starts his summing-up to the lay members of the court.
Expedited and non-expedited appeals
5
1
Where the Director informs the court in accordance with article 4(4) that he intends to appeal, the judge advocate must decide whether or not the appeal should be expedited.
2
If the judge advocate decides that the appeal should be expedited, he may order an adjournment.
3
If the judge advocate decides that the appeal should not be expedited, he may —
a
order an adjournment; or
b
discharge the lay members of the court.
4
If he decides that the appeal should be expedited, he or the Court Martial Appeal Court may subsequently reverse that decision and, if it is reversed, the judge advocate may act as mentioned in paragraph (3)(a) or (b).
Continuation of proceedings for charges not affected by ruling
6
1
This article applies where the Director informs the court in accordance with article 4(4) that he intends to appeal.
2
Proceedings may be continued in respect of any charge which is not the subject of the appeal.
Determination of appeal by the Court Martial Appeal Court
7
1
On an appeal under article 4, the Court Martial Appeal Court may confirm, reverse or vary any ruling to which the appeal relates.
2
Paragraphs (3) to (5) apply where the appeal relates to a single ruling.
3
Where the Court Martial Appeal Court confirms the ruling, it must, in respect of the charge or each charge which is the subject of the appeal, order that the accused in relation to that charge be acquitted of that charge.
4
Where the Court Martial Appeal Court reverses or varies the ruling, it must, in respect of the charge or each charge which is the subject of the appeal, do any of the following —
a
order that proceedings for that charge be resumed before the Court Martial;
b
order a retrial;
c
order that the accused in relation to that charge be acquitted of that charge.
5
But the Court Martial Appeal Court may not make an order under paragraph (4)(c) in respect of a charge unless it considers that the accused could not receive a fair trial if an order were made under paragraph (4)(a) or (b).
6
Paragraphs (7) and (8) apply where the appeal relates to a ruling that there is no case to answer and one or more other rulings.
7
Where the Court Martial Appeal Court confirms the ruling that there is no case to answer, it must, in respect of the charge or each charge which is the subject of the appeal, order that the accused in relation to that charge be acquitted of that charge.
8
Where the Court Martial Appeal Court reverses or varies the ruling that there is no case to answer, it must in respect of the charge or each charge which is the subject of the appeal, make any of the orders mentioned in paragraph (4)(a) to (c) (but subject to paragraph (5)).
Reversal of rulings
8
The Court Martial Appeal Court may not reverse a ruling on an appeal under this Order unless it is satisfied —
a
that the ruling was wrong in law;
b
that the ruling involved an error of law or principle; or
c
that the ruling was a ruling that it was not reasonable for the judge advocate to have made.
Appeals to the Supreme Court
9
1
The 1968 Act is amended as follows.
2
In section 39(1) (right of appeal) for “or the Courts-Martial (Prosecution Appeals) Order 2006” substitute “or the Court Martial (Prosecution Appeals) Order 2009”.
3
In section 42(1) (bail) for “Courts-Martial (Prosecution Appeals) Order 2006” substitute “Court Martial (Prosecution Appeals) Order 2009”.
Restrictions on reporting
10
1
Except as provided by this article no publication shall include a report of —
a
anything done under article 4 or 5;
b
an appeal under this Order;
c
an appeal under Part 3 of the 1968 Act in relation to an appeal under this Order; or
d
an application for leave to appeal in relation to an appeal mentioned in sub-paragraph (b) or (c).
2
The judge advocate may order that paragraph (1) is not to apply, or is not to apply to a specified extent, to a report of —
a
anything done under article 4 or 5; or
b
an application to the judge advocate for leave to appeal to the Court Martial Appeal Court under this Order.
3
The Court Martial Appeal Court may order that paragraph (1) is not to apply, or is not to apply to a specified extent, to a report of —
a
an appeal to the Court Martial Appeal Court under this Order;
b
an application to that Court for leave to appeal to it under this Order; or
c
an application to that Court for leave to appeal to the Supreme Court under Part 3 of the 1968 Act.
4
The Supreme Court may order that paragraph (1) is not to apply, or is not to apply to a specified extent, to a report of —
a
an appeal to that Court under Part 3 of the 1968 Act; or
b
an application to that Court for leave to appeal to it under Part 3 of that Act.
5
Where there is only one accused and he objects to the making of an order under paragraph (2), (3) or (4) —
a
the judge advocate, the Court Martial Appeal Court or the Supreme Court is to make the order if (and only if) satisfied, after hearing the representations of the accused, that it is in the interests of justice to do so; and
b
the order (if made) is not to apply to the extent that a report deals with any such objection or representations.
6
Where there are two or more accused and one or more of them object to the making of an order under paragraph (2), (3) or (4) —
a
the judge advocate, the Court Martial Appeal Court or the Supreme Court is to make the order if (and only if) satisfied, after hearing the representations of each of the accused, that it is in the interests of justice to do so; and
b
the order (if made) is not to apply to the extent that a report deals with any such objection or representations.
7
Paragraph (1) does not apply to the inclusion in a publication of a report of —
a
anything done under article 4 or 5,
b
an appeal under this Order,
c
an appeal under Part 3 of the 1968 Act in relation to an appeal under this Order, or
d
an application for leave to appeal in relation to an appeal mentioned in sub-paragraph (b) or (c),
at the conclusion of the trial of the accused or the last of the accused to be tried.
8
Paragraph (1) does not apply to a report which contains only one or more of the following matters —
a
the identity of the court and the name of the judge advocate;
b
the names, ages, unit addresses and occupations of the accused or co-accused and witnesses;
c
the charge or charges, or a summary of them, brought against the accused or co-accused;
d
the names of the prosecuting officer and legal representatives in the appeal;
e
where the proceedings are adjourned, the date and place to which they are adjourned;
f
any arrangements as to release from custody subject to requirements imposed under section 107 of the 2006 Act;
g
whether a right to publicly funded representation was granted to the accused or any co-accused.
9
The addresses that may be included in a report by virtue of paragraph (8) are addresses —
a
at any relevant time; and
b
at the time of their inclusion in the publication.
10
Nothing in this article affects any prohibition or restriction by virtue of any other enactment on the inclusion of any matter in a publication.
Offences in connection with reporting
11
1
This article applies if a publication includes a report in contravention of article 10.
2
Where the publication is a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical is guilty of an offence.
3
Where the publication is a relevant programme —
a
any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included, and
b
any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
is guilty of an offence.
4
In the case of any other publication, any person publishing it is guilty of an offence.
5
If an offence under this article committed by a body corporate is proved —
a
to have been committed with the consent or connivance of, or
b
to be attributable to any neglect on the part of,
an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
6
In paragraph (5), “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
7
If the affairs of a body corporate are managed by its members, “director” in paragraph (6) means a member of that body.
8
Where an offence under this article is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
9
A person guilty of an offence under this article is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
10
Proceedings for an offence under this article may not be instituted —
a
in England and Wales otherwise than by or with the consent of the Attorney General; or
b
in Northern Ireland otherwise than by or with the consent of —
i
before the relevant date, the Attorney General for Northern Ireland; or
ii
on or after the relevant date, the Director of Public Prosecutions for Northern Ireland.
11
In paragraph (10) “the relevant date” means the date on which section 22(1) of the Justice (Northern Ireland) Act 2002 comes into force.
Legal representatives
12
1
A party to an appeal may appoint a legal representative to act for him in relation to the appeal.
2
A person may not be appointed as a legal representative unless —
a
he has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 ;
b
he is an advocate or a solicitor in Scotland;
c
he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or
d
he is a person having in any of the Channel Islands, the Isle of Man, a Commonwealth country or a British overseas territory rights and duties similar to those of a barrister or solicitor in England and Wales, and subject to punishment or disability for breach of professional rules.
3
Any right conferred on a party to proceedings by this Order may be exercised, and any duty imposed on him by this Order discharged, by his legal representative on his behalf.
4
A party who appoints a legal representative shall notify the court administration officer of the legal representative’s name and address.
Costs
13
1
The Court Martial Appeal Court may if it thinks fit, direct the payment by the Secretary of State of costs to the accused or any interested party.
2
The costs which may under paragraph 1 be directed to be paid are such sums as appear to the Court Martial Appeal Court reasonably sufficient to compensate the accused or interested party for any expenses properly incurred by him in relation to the appeal.
3
Where the Court Martial Appeal Court reverses or varies a ruling on an appeal, it may make such order as to the costs to be paid by the accused, to such person as may be named in the order, as it considers just and reasonable.
Miscellaneous and supplemental
14
1
There is to be no right of appeal under this Order in respect of a ruling in relation to which the Director has previously informed the court of his intention to appeal under article 4(4).
2
Where a ruling relates to two or more charges but not all of those charges are the subject of an appeal under this Order, nothing in this Order is to be regarded as affecting the ruling so far as it relates to any charge which is not the subject of the appeal.
3
Where a charge is brought in respect of the same offence against two or more co-accused, the provisions of this Order are to apply as if the charge, so far as relating to each accused, were a separate charge (so that, for example, any reference in this Order to a ruling which relates to one or more charges includes a ruling which relates to one or more of those separate charges).
PART 3 Procedural provisions
Request for adjournment
15
1
A request by the Director for an adjournment under article 4(4)(b) must be made to the judge advocate immediately following the making of a ruling to which article 4 refers.
2
The judge advocate shall grant the request unless he considers it is in the interests of justice for the Director to indicate immediately whether or not he intends to seek leave to appeal.
3
The adjournment shall be until the next court day after the day on which the ruling was given, unless the judge advocate considers that the interests of justice require a longer adjournment.
4
Subject to article 21(7) and (8), as soon as is reasonably practicable after the Director informs the judge advocate that he intends to seek leave to appeal or requests an adjournment to consider whether to do so, the court administration officer shall provide a transcript of the ruling which is the subject of the proposed appeal to —
a
the Director;
b
the accused; and
c
any interested party.
Application to the judge advocate for leave to appeal
16
1
The Director must inform the judge advocate immediately after the ruling or the adjournment if he intends to seek leave to appeal against a ruling and at the same time he may apply orally for leave to appeal.
2
Before deciding whether or not to grant leave to appeal, the judge advocate shall hear oral representations from the accused.
3
The judge advocate shall decide whether or not to give leave to appeal on the same day on which an oral application for leave to appeal is made to that judge advocate.
4
The judge advocate may extend the period under paragraph (3) only if he considers it is in the interests of justice to do so.
5
If the judge advocate gives leave to appeal he must issue a written certificate that he has done so and the court administration officer must forward that certificate to the registrar.
Further provision on expedited and non-expedited appeals
17
1
At the time when the Director informs the judge advocate that he intends to seek leave to appeal against a ruling, he must also make oral representations as to whether or not that appeal should be expedited under article 5(1).
2
Before deciding whether or not the appeal should be expedited, the judge advocate shall hear oral representations from the accused and any interested party.
3
The court administration officer must provide a copy of the reasons given by the judge advocate for his decision as to whether or not the appeal should be expedited, to the Director, the accused and all interested parties.
4
The judge advocate may reverse his decision that the appeal should be expedited at any time before the notice of appeal or application for leave to appeal is served on the court administration officer under article 18(1) and must provide reasons for that reversal in writing to the Director, the accused and all interested parties.
5
At any time after a notice of appeal or application for leave to appeal has been served on the registrar under article 18(1), the Director or accused may apply to the Court Martial Appeal Court to reverse a judge advocate’s decision that the appeal should be expedited under article 5(4) and written notice of such an application must be served on —
a
the registrar;
b
the court administration officer;
c
any interested party; and
d
whichever of the following does not make the application —
i
the Director;
ii
the accused.
Notice of appeal or application for leave to appeal
18
1
Subject to article 21, a written notice of appeal (where the judge advocate has granted leave) or a written notice of application for leave to appeal shall be served on —
a
the registrar;
b
the court administration officer;
c
the accused; and
d
any interested party.
2
The notice of appeal or application for leave to appeal must be served —
a
where the judge advocate has decided that the appeal should be expedited under article 5(1) and that decision has not been subsequently reversed, before 5.00 pm on the next court day; or
b
in any other case, within ten days of the day on which the Director informs the judge advocate that he intends to seek leave to appeal.
3
The Court Martial Appeal Court may extend the period for service under paragraph (2), either before or after it expires, on application by the Director.
4
A notice of appeal or, as the case may be, a notice of application for leave to appeal shall —
a
specify each ruling against which the Director wants to appeal;
b
identify each ground of appeal on which the Director relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;
c
summarise the relevant facts;
d
identify any relevant authorities;
e
include or attach any application for the following, with reasons —
i
permission to appeal, if the Director needs the court’s permission;
ii
an extension of time within which to serve the appeal notice;
iii
expedition of the appeal, or revocation of a direction expediting the appeal;
f
include a list of those on whom the Director has served the appeal notice;
g
attach —
i
a transcript or note of each ruling against which the Director wants to appeal;
ii
all relevant skeleton arguments considered by the judge advocate;
iii
any written application for leave to appeal that the Director made to the judge advocate;
iv
a transcript or note of the decision by the judge advocate on any application for permission to appeal;
v
a transcript or note of the decision by the judge advocate on any request to expedite the appeal; and
vi
any other document or thing that the Director thinks the court will need to decide the appeal.
Accused’s response
19
1
Upon receiving notice of an appeal or application for leave to appeal, the accused if he wishes to oppose the appeal or application, must serve a written response (“the accused’s response”) on —
a
the registrar;
b
the court administration officer;
c
the Director; and
d
any interested party.
2
An accused’s response must be served on those listed in paragraph (1) —
a
where the judge advocate has decided that the appeal should be expedited under article 5(1) and that decision has not been subsequently reversed under article 5(4), on the next court day after the day on which the notice of appeal or application for leave to appeal is served on the accused; or
b
in any other case, within ten days of the day on which the notice of the appeal or application for leave to appeal is served on the defendant.
3
The Court Martial Appeal Court may extend the period of service under paragraph (2) either before or after it expires.
4
An accused’s response shall —
a
give the date on which the accused was served with the appeal notice;
b
identify each ground of opposition on which the accused relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;
c
summarise any relevant facts not already summarised in the appeal notice;
d
identify any relevant authorities;
e
include or attach any application for the following, with reasons —
i
an extension of time within which to serve the accused’s response;
ii
a direction to attend in person any hearing that the accused could attend by live link, if the accused is in custody;
f
identify any other document or thing that the accused thinks the court will need to decide the appeal.
Accused in custody
20
1
An accused in custody is not entitled to be present in person at the hearing of an appeal or application for leave to appeal, unless the Court Martial Appeal Court so directs.
2
However, an accused in custody may participate in such a hearing, without a direction of the Court Martial Appeal Court, by way of live link.
3
In directing whether an accused in custody shall be present in person under paragraph (1) the Court Martial Appeal Court must take into account —
a
any representations of the Director and the accused;
b
the availability and reliability of live link facilities;
c
any practical difficulties with the physical attendance of the accused; and
d
whether or not the appeal is expedited under article 5(1).
Public interest rulings
21
1
This article applies where a public interest ruling is the subject of an appeal or application for leave to appeal.
2
In any appeal or application for leave to appeal against a public interest ruling, the Director need not describe the material that is the subject of the ruling in the notice of appeal or application for leave to appeal under article 18.
3
Where the Director has reason to believe that to reveal to the accused or any interested party the category of material that is the subject of the public interest ruling would have the effect of disclosing that which the Director considers should not be disclosed, the Director need not describe the category of the material in the notice of appeal or application for leave to appeal under article 18.
4
Where the Director has reason to believe that to reveal to the accused or to any interested party the fact that a public interest ruling has been made would have the effect of disclosing that which the Director considers should not be disclosed the Director need not serve a notice of appeal or application for leave to appeal on the accused or any interested party as otherwise required under article 18(1), unless the Court Martial Appeal Court otherwise directs.
5
Where the Director has taken any of the measures set out in paragraphs (2), (3) and (4) the notice of appeal or application for leave to appeal served on the registrar under article 18(1)(a) must be accompanied by a confidential annex indicating that the measure or measures have been taken and giving the Director’s reasons for taking them.
6
Where the Director has taken any of the measures set out in paragraph (4), the accused shall not be entitled to be present in person at the hearing by the Court Martial Appeal Court of the appeal or application for leave to appeal, or appear by way of live link, unless the Court Martial Appeal Court otherwise directs.
7
The court administration officer shall not provide a transcript of the ruling which is the subject of the proposed appeal to the accused or any interested party unless and until the Director has served a notice of appeal or application for leave to appeal on that person.
8
A transcript provided by the court administration officer to an accused or interested party shall not describe or disclose —
a
the material that is the subject of the ruling, or
b
the category of that material,
save to the extent that the Director has described that material or category of material in the notice of appeal or application for leave to appeal served on that accused or interested party.
Supply of documentary and other exhibits
22
1
The registrar must, on request, supply to the Director, the accused or any interested party copies of documents or other exhibits required for the appeal or application for leave to appeal and may make charges in accordance with scales and rates fixed for the time being by the Treasury.
2
The registrar must, on request, make arrangements for the Director, the accused or any interested party to inspect any document or other exhibit required for the appeal.
3
This article shall not apply to the supply of transcripts of proceedings.
4
This article shall not require the registrar to supply to the accused or any interested party, or allow the accused or any interested party to inspect —
a
material that is the subject of a public interest ruling,
b
a notice of appeal or application for leave to appeal served by the Director on the registrar in accordance with article 18(1) where by virtue of article 21(4) the Director has not served it on the accused or any interested party, or
c
a confidential annex served by the Director on the registrar in accordance with article 21(5),
unless the Court Martial Appeal Court otherwise directs.
Abandonment of proceedings
23
1
An appeal or application for leave to appeal (including an application for leave to appeal to the Supreme Court) may be abandoned before it is heard by the Court Martial Appeal Court by serving notice in writing (a “notice of abandonment”) on the registrar.
2
A notice of abandonment shall specify each ruling in respect of which the appeal is abandoned.
Powers exercisable by a single judge
24
1
The following powers may be exercised by a single judge in the same manner as they may be exercised by the Court Martial Appeal Court and subject to the same provisions —
a
to give leave to appeal under article 3(4);
b
to reverse, under article 5(4), a decision of the judge advocate that an appeal should be expedited;
c
to extend, under article 18(3), the time for service of the notice of appeal or of an application for leave to appeal;
d
to extend, under article 19(3), time for service of the accused’s response;
e
to direct, under article 20(1), that the accused in custody be present in person at the hearing of the appeal or application for leave to appeal;
f
where the Director has served a notice of abandonment under article 23, to order the acquittal of the accused and, where appropriate, his release from custody under article 4(11), and payment of his costs under article 13.
2
A single judge may, for the purposes of exercising any of the powers specified in paragraph (1), sit in such place as he appoints and may sit otherwise than in open court.
3
Where a single judge exercises one of the powers specified in paragraph (1), the registrar must serve notice of the single judge’s decision on —
a
the Director;
b
the accused;
c
any interested party; and
d
the court administration officer.
Powers exercisable by the registrar
25
1
The following powers may be exercised by the registrar in the same manner as they may be exercised by the Court Martial Appeal Court and subject to the same provisions —
a
to extend, under article 18(3), the time for service of the notice of appeal or of an application for leave to appeal; and
b
to extend, under article 19(3), time for service of the accused’s response.
2
Where the registrar exercises one of the powers specified in paragraph (1), he must serve notice of his decision on —
a
the Director;
b
the accused;
c
any interested party; and
d
the court administration officer.
3
Where the registrar has refused an application to exercise any of the powers specified in paragraph (1), the party making the application may have it determined by a single judge by serving a written notice of renewal.
4
A notice of renewal shall —
a
be served on the registrar within ten days of the day on which notice of the registrar’s decision is served on the party making the application;
b
specify the applications that the party wishes to have determined by a single judge; and
c
a notice of renewal must be signed by, or on behalf of, the person making the application.
5
If the notice is not signed by the party making the application and that party is in custody, the registrar shall, as soon as practicable after receiving the notice, send a copy of it to that party.
6
If the notice of renewal is not served on the registrar within the period specified in paragraph (4), the application shall be treated as having been refused by the single judge.
Determination by full court
26
1
Where a single judge has refused an application to exercise any of the powers specified in article 24(1), the party making the application may have it determined by the Court Martial Appeal Court by serving a written notice of renewal.
2
A notice of renewal shall —
a
be served on the registrar within ten days of the day on which notice of the single judge’s decision is served on the party making the application;
b
specify the applications that the party wishes to have determined by a full court; and
c
a notice of renewal must be signed by, or on behalf of, the person making the application.
3
The Court Martial Appeal Court may extend the period for service under paragraph (2) either before or after it expires.
4
If the notice is not signed by the party making the application and that party is in custody, the registrar shall, as soon as practicable after receiving the notice, send a copy of it to that party.
5
If the notice of renewal is not served on the registrar within the period specified in paragraph (2) or such extended period as the Court Martial Appeal Court has allowed under paragraph (3), the application shall be treated as having been refused by the court.
Notice of hearing and decision of the Court Martial Appeal Court
27
1
The registrar must give notice, as far in advance as reasonably practicable, of the date fixed for the hearing by the Court Martial Appeal Court of an appeal or application to —
a
the Director;
b
the accused;
c
any interested party; and
d
the court administration officer.
2
The registrar must, as soon as reasonably practicable, serve notice of a decision of the Court Martial Appeal Court on an appeal or application on those parties listed in paragraph (1).
3
Where a party to whom notice is required to be given under this article is in custody, notice must instead be given to the person having custody of him.
Assistance from the court administration officer
28
The registrar may require the court administration officer to furnish the Court Martial Appeal Court with any assistance or information which it may require for the purposes of exercising its jurisdiction under this Order.
Further provision on appeals to the Supreme Court
29
An application to the Court Martial Appeal Court for leave to appeal to the Supreme Court may be made —
a
orally after the decision of the Court Martial Appeal Court from which an appeal lies to the Supreme Court; or
b
in writing and served on the registrar within ten days of service by the registrar of notice under article 27(2).
Service
30
1
Where this Order requires service of a document on the registrar then, unless the registrar, a single judge or the Court Martial Appeal Court directs otherwise, the document may be served by any of the following methods —
a
in the case of an accused or interested party who is in custody, by delivering it to the person who has custody of him;
b
by addressing it to the registrar and delivering it at, or sending it by post, fax, electronic mail or other electronic means, to his office at the Royal Courts of Justice, London WC2A 2LL.
2
Where this Order requires service of a document on the court administration officer then, unless the registrar, a single judge or the Court Martial Appeal Court directs otherwise, the document may be served by any of the following methods —
a
in the case of an accused or interested party who is in custody, by delivering it to the person who has custody of him;
b
by delivering it, or sending it by post, DX, fax, electronic mail or other electronic means, to the court administration officer.
3
Where this Order requires the service of a document on the Director then, unless the registrar, a single judge or the Court Martial Appeal Court directs otherwise, the document may be served by any of the following methods —
a
in the case of an accused or interested party who is in custody, by delivering it to the person who has custody of him;
b
by post, DX, fax, electronic mail or other electronic means to —
i
the principal office of the Service Prosecuting Authority; or
ii
with the agreement of a prosecuting officer, that Authority’s main office in Germany; or
c
on a prosecuting officer personally, with his agreement.
4
A person who has custody of an accused or interested party and to whom that accused or interested party delivers a document under paragraph (1)(a), (2)(a) or (3)(a) must endorse on it the date of delivery and forward it to the registrar, the court administration officer or the Director, as appropriate.
5
Where this Order requires the service of a document on any other person then, unless the registrar, a single judge or the Court Martial Appeal Court directs otherwise, the document may be served by any of the following methods —
a
personally, on that person or on his legal representative;
b
by post to that person’s last known place of abode, unit or place of business;
c
by post to his legal representative’s place of business;
d
leaving it at the person’s last known place of abode or place of business;
e
if the person has —
i
indicated that he is willing to accept service by DX, fax, electronic mail or other electronic means, and
ii
has given a DX box number, fax number or electronic mail or other electronic means address,
by sending a copy of the document by such means to him;
f
if the person’s legal representative has —
i
indicated that he is willing to accept service by DX, fax, electronic mail or other electronic means, and
ii
has given a DX box number, fax number or electronic mail or other electronic means address,
by sending a copy of the document by such means to the legal representative.
6
Where a document is served under this Order by any method other than personal service it is deemed to be served —
a
in the case of a document left at an address, on the next court day after the day on which it was left;
b
in the case of a document sent by post, on the fifth court day after the day on which it was posted;
c
in the case of a document served by DX, on the fifth day after the day on which it was left at the addressee’s DX box number or despatched;
d
in the case of a document transmitted by fax, electronic mail or other electronic means, the day after it was transmitted;
e
in any case, on the day on which the addressee responds to it if that is earlier.
7
Where a document to be served on a person is sent or delivered to his commanding officer, his commanding officer must arrange for the document to be served on him personally as soon as is reasonably practicable.
PART 4 Transitory and transitional provisions
Transitory provision
31
1
Until section 23 of the Constitutional Reform Act 2005 comes into force —
a
references in this Order to the Supreme Court are to be read as references to the House of Lords; and
b
article 10(4)(a) and (b) is to be read, in each case, as if the words “that House” were substituted for “that Court”.
2
Until paragraph 5 of Schedule 11 to that Act comes into force, the reference in article 12 to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland.
Transitional provisions
32
1
A person who was guilty of an offence under article 11 of the 2006 Order is to be treated for the purposes of this Order as if he were guilty of an offence under article 11 of this Order.
2
Where before commencement —
a
an order was made, in respect of a charge, under article 7(4)(b) of the 2006 Order, and
b
no fresh court-martial was convened to try that charge,
that order is to have effect as if it were an order under article 7(4)(b) of this Order.
3
Where before commencement an appeal was brought under the 2006 Order but not determined, it shall be treated as an appeal brought under this Order.
4
Anything done before commencement in relation to an appeal which falls within paragraph (3), which would have been done in accordance with any provision of this Order if that provision had then been in force, is to be treated as having been done in accordance with that provision.
5
In sections 39(1) and 42(1) of 1968 Act as amended by this Order, the references to this Order include references to the 2006 Order.
Kevan Jones
Parliamentary Under Secretary of State
Ministry of Defence
21st July 2009