Commentary on provisions of Act Section 4: Summary hearings: power to rectify mistakes etc
Section 4 enables rules made under section 153 of the AFA 2006 in respect of summary hearings or the activation of suspended sentences of service detention ("summary hearing rules") to include a power for a commanding officer to vary or rescind punishments or activation orders that the commanding officer has awarded or made in error (this type of power is sometimes referred to as a "slip rule"). An activation order is an order under section 193 of AFA 2006 that makes a suspended sentence of service detention passed by a commanding officer or the Summary Appeal Court ("SAC") take effect. Prior to the AFA 2021, such errors could only be corrected by the SAC on appeal or when a case was referred to the court following a review under section 152 of the AFA 2006 (this gives the Defence Council or an officer appointed by the council the power to review commanding officers’ punishments and activation orders and refer them to the SAC). There are similar powers for the Court Martial to rectify errors under Part 15 of the Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041). In the civilian criminal justice system in England and Wales, the Crown Court and a magistrates’ court have comparable powers (see section 385 of the Sentencing Act 2020 and section 142 of the Magistrates’ Courts Act 1980). This section implements a recommendation of the Service Justice System Review (recommendation 43 of Part 2).
	Subsection (2) inserts a new subsection (1A) in section 153 of the AFA 2006 to enable summary hearing rules to give a commanding officer the power to vary or rescind a punishment awarded by the commanding officer in cases where it appears to them that there was no power to award the punishment or make the order.
	Subsection (3) inserts a new subsection (2A) in section 153 of the AFA 2006 to allow summary hearing rules to include rules on the commencement of punishments or activation orders varied by a commanding officer.
	Subsection (4) amends section 153(3) of the AFA 2006 to allow the powers in the new subsection (1A) of that section to be used in relation to proceedings in respect of activation orders made by a commanding officer.
	Subsection (5) inserts new subsections (2A) to (2C) in section 152 of the AFA 2006. Section 152 puts in place arrangements for punishments awarded by commanding officers to be reviewed by the Defence Council or an officer appointed by the council; if an error is identified the case can then be referred to the SAC. The new subsections (2A) and (2B) provides the option of referring the case back to the commanding officer instead for them to consider exercising their power to vary or rescind the punishment.