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169 Powers where person unfit to stand trial or not guilty by reason of insanity

(1) This section applies where on a trial by the Court Martial—

(a) the defendant is found to be unfit to stand trial and to have done the act charged against him; or

(b) the defendant is found not guilty by reason of insanity.

(2) Subject to subsections (4) and (5), the court must make in respect of the defendant—

(a) a hospital order, with or without a restriction order;

(b) a service supervision order (defined by section 170); or

(c) an order discharging him absolutely.

(3) In this section—

• “hospital order” means an order under section 37 of the Mental Health Act 1983 (c. 20) (“the 1983 Act”) as modified by Schedule 4 to this Act;

• “restriction order” means an order under section 41 of that Act as so modified.

(4) The power to make a hospital order by virtue of this section is not exercisable unless the conditions in subsections (1)(b) and (2) of section 37 of the 1983 Act, as modified by Schedule 4 to this Act, are satisfied.

(5) Where—

(a) the finding mentioned in subsection (1) relates to an offence the sentence for which is fixed by law, and

(b) the court has power to make a hospital order,

the court must make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).

(6) The functions of the court under this section, and any functions under the 1983 Act that are exercisable by the court by reason of this section or Schedule 4, are to be exercised by—

(a) the judge advocate for the trial mentioned in subsection (1); or

(b) in a case where that judge advocate has made an interim hospital order under section 38 of the 1983 Act as modified by Schedule 4, by that or any other judge advocate.

(7) In subsection (1) “act” includes an omission and the reference to the doing of an act is to be read accordingly.

(8) Schedule 4 (modifications of the 1983 Act) has effect.

170 Service supervision orders

(1) In section 169 and this section a “service supervision order” means an order which requires the person in respect of whom it is made (“the supervised person”) to be under the supervision of a person specified in the order (“the supervising officer”) for a period specified in the order.

(2) The period specified in the order must not exceed the maximum period for the time being specified in paragraph 1(1) of Schedule 1A to the Criminal Procedure (Insanity) Act 1964 (c. 84) (maximum period of civilian supervision order).

(3) The court may not make a service supervision order under section 169(2)(b) unless it is satisfied—

(a) that, having regard to all the circumstances of the case, the making of a service supervision order is the most suitable way of dealing with the defendant;

(b) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

(c) that arrangements have been made for any treatment which (under subsection (4)) is intended to be specified in the order.

(4) An order under section 169(2)(b) may, in accordance with regulations under subsection (5), require the supervised person to submit, during the whole of the period specified in the order or such part of it as may be so specified, to treatment by or under the direction of a registered medical practitioner.

(5) The Secretary of State may by regulations make further provision in relation to service supervision orders, including in particular provision—

(a) as to the procedure to be followed by a court making a service supervision order;

(b) as to the descriptions of supervising officer who may be specified in such an order;

(c) for treatment to be provided, in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated, at a place other than a place specified in the order;

(d) authorising a court to include in a service supervision order requirements corresponding to any requirements that Schedule 1A to the Criminal Procedure (Insanity) Act 1964 (c. 84) for the time being allows to be included in supervision orders under that Act;

(e) imposing on the supervised person obligations corresponding to any for the time being imposed by that Schedule;

(f) for the amendment and revocation of a service supervision order.

171 Remission for trial

(1) Where—

(a) a person is detained in pursuance of a hospital order which the Court Martial had power to make by virtue of section 169(1)(a),

(b) the court also made a restriction order, and

(c) the restriction order has not ceased to have effect,

the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may remit the person for trial by the Court Martial.

(2) A person remitted under this section must be transferred to service custody, but when he is so transferred—

(a) he must as soon as practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and

(b) on that review he is to be dealt with as on a review under section 108(1) (see section 108(4) to (8)).

(3) On the transfer of a person to service custody under this section the hospital order and restriction order cease to have effect.

(4) In this section—

• “hospital order” and “restriction order” have the same meanings as in section 169;

• “the responsible medical officer” means the registered medical practitioner in charge of the person’s treatment.

(5) In subsection (1)(a) the reference to a hospital order as there mentioned includes a reference to—

(a) a hospital order made by virtue of section 16(1)(b) or 22(3A) of the Court Martial Appeals Act 1968 (c. 20);

(b) a hospital order made by virtue of section 25B(1) of that Act in a case in which a finding within section 169(1)(a) of this Act was made by the Court Martial.

172 Provision supplementary to sections 166 and 168

(1) In sections 166 and 168 and this section “duly approved” means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.

(2) For the purposes of the provisions of sections 166 and 168 which permit a court to act on the written evidence of—

(a) a registered medical practitioner, or

(b) a registered medical practitioner who is duly approved,

a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may (subject to subsection (4)) be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved.

(3) The court may require the signatory of any such report to be called to give oral evidence.

(4) Where in pursuance of a direction of the court any such report is tendered in evidence otherwise than by or on behalf of the defendant, then—

(a) if the defendant is represented by counsel or a solicitor, a copy of the report must be given to his counsel or solicitor;

(b) if the defendant is not so represented the substance of the report must be disclosed to him or, if he is aged under 18, to his parent or guardian if present in court;

(c) the defendant may require the signatory of the report to be called to give oral evidence; and

(d) evidence to rebut the evidence contained in the report may be called by the defendant or on his behalf.