Armed Forces Act 2006

Section 321

SCHEDULE 11 Powers of the Criminal Cases Review Commission

Amendment of the Court Martial Appeals Act 1968

1 After section 29 of the Court Martial Appeals Act 1968 insert—

“29A Power to order investigation by Criminal Cases Review Commission

(1) On an appeal against conviction or an application for leave to appeal against conviction, the Appeal Court may direct the Criminal Cases Review Commission to investigate and report to the Court on any matter if it appears to the Court that—

(a) in the case of an appeal, the matter is relevant to the determination of the appeal and ought, if possible, to be resolved before the appeal is determined;

(b) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;

(c) an investigation of the matter by the Commission is likely to result in the Court’s being able to resolve it; and

(d) the matter cannot be resolved by the Court without an investigation by the Commission.

(2) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 36 of this Act.

(3) A direction by the Appeal Court under subsection (1) above shall be given in writing and shall specify the matter to be investigated.

(4) Copies of such a direction shall be made available to the appellant and the respondent.

(5) Where the Commission have reported to the Appeal Court on any matter which they have been directed under subsection (1) above to investigate, the Court—

(a) shall notify the appellant and the respondent that the Commission have reported; and

(b) may make available to the appellant and the respondent the report of the Commission and any statements, opinions and reports which accompanied it.

(6) In this section “respondent” includes a person who will be a respondent if leave to appeal is granted.”

Amendments of the Criminal Appeal Act 1995

2 After section 12 of the Criminal Appeal Act 1995 (c. 35) insert—

“12A Cases dealt with by the Court Martial

(1) Where a person has been convicted by the Court Martial (including on an appeal brought from the Service Civilian Court), the Commission—

(a) may at any time refer the conviction to the Court Martial Appeal Court, and

(b) (whether or not they refer the conviction) may at any time refer to the Court Martial Appeal Court any sentence (other than one fixed by law) imposed by the Court Martial on, or in subsequent proceedings relating to, the conviction.

(2) Where a person has been convicted by the Service Civilian Court and sentenced by the Court Martial on an appeal against sentence only, the Commission may at any time refer to the Court Martial Appeal Court that sentence of the Court Martial and any other sentence imposed by the Court Martial in respect of a connected conviction within the meaning given by section 12B(6).

(3) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 8 of the Court Martial Appeals Act against the conviction.

(4) On a reference under subsection (1) of a person’s conviction, the Commission may give notice to the Court Martial Appeal Court that any related conviction specified in the notice is to be treated as referred to that court under subsection (1).

(5) A reference under subsection (1) of a sentence imposed on, or in subsequent proceedings relating to, a person’s conviction shall be treated for all purposes as an appeal by the person under section 8 of the Court Martial Appeals Act against—

(a) the sentence, and

(b) any other sentence (other than one fixed by law) imposed by the Court Martial on, or in subsequent proceedings relating to, the conviction or any related conviction.

(6) A reference under subsection (2) of a person’s sentence shall be treated for all purposes as an appeal by the person under section 8 of the Court Martial Appeals Act against—

(a) the sentence, and

(b) any other sentence imposed by the Court Martial in respect of a connected conviction within the meaning given by section 12B(6).

(7) Where a finding of not guilty by reason of insanity has been made by the Court Martial in the case of a person, the Commission may at any time refer the finding to the Court Martial Appeal Court; and a reference under this subsection shall be treated for all purposes as an appeal by the person under section 21 of the Court Martial Appeals Act against the finding.

(8) Where the Court Martial has found that a person is under a disability and that he did the act or made the omission charged against him, the Commission may at any time refer either or both of those findings to the Court Martial Appeal Court; and a reference under this subsection shall be treated for all purposes as an appeal by the person under section 24 of the Court Martial Appeals Act against the finding or findings referred.

(9) For the purposes of this section convictions are “related” if they are of the same person in the same proceedings.

12B Cases dealt with by the Service Civilian Court

(1) Where a person has been convicted of an offence by the Service Civilian Court, the Commission—

(a) may at any time refer the conviction to the Court Martial; and

(b) (whether or not they refer the conviction) may at any time refer to the Court Martial any sentence imposed by the Service Civilian Court on, or in subsequent proceedings relating to, the conviction.

(2) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 285 of the Armed Forces Act 2006 against the conviction (whether or not he pleaded guilty).

(3) A reference under subsection (1) of a sentence imposed on, or in subsequent proceedings relating to, a person’s conviction shall be treated for all purposes as an appeal by the person under section 285 of the Armed Forces Act 2006 against—

(a) the sentence, and

(b) any other sentence imposed by the Service Civilian Court on, or in subsequent proceedings relating to, the conviction or any connected conviction.

(4) On a reference under subsection (1) of a person’s conviction, the Commission may give notice to the Court Martial that any connected conviction which is specified in the notice is to be treated as referred to the Court Martial under subsection (1).

(5) On a reference under this section the Court Martial may not impose a sentence more severe than that imposed by the Service Civilian Court.

(6) For the purposes of this section convictions are “connected” if they are of the same person by the same court on the same day.”

3 In section 13(1) of that Act (conditions for making of references), for “12” substitute “12B”.

4 (1) Section 14 of that Act (further provisions about references) is amended as follows.

(2) In subsection (1) for “12” substitute “12B”.

(3) In subsection (2) for “12” substitute “12B”.

(4) In subsection (3)—

(a) for “9 or 10” substitute “9, 10 or 12A”;

(b) after “Court of Appeal”, in the first place where it occurs, insert “or, as the case may be, of the Court Martial Appeal Court”;

(c) for “Court of Appeal”, in the second place where it occurs, substitute “court to which the reference is made”.

(5) In subsection (4) for “12” substitute “12B”.

(6) In subsection (4A) for “9 or 10” substitute “9, 10 or 12A”.

(7) In subsection (4B) after “Court of Appeal” insert “or, as the case may be, the Court Martial Appeal Court”.

(8) In subsection (5) for “11 or 12” substitute “11, 12 or 12B”.

(9) In subsection (6) for “12” substitute “12B”.

5 (1) Section 15 of that Act (investigations for Court of Appeal) is amended as follows.

(2) In the sidenote after “Court of Appeal” insert “and Court Martial Appeal Court”.

(3) In subsection (1)—

(a) after “a direction” insert “(a “relevant direction”)”;

(b) after “1980 Act” insert “or by the Court Martial Appeal Court under section 29A(1) of the Court Martial Appeals Act,”.

(4) In subsection (2) for “Court of Appeal” substitute “relevant Court”.

(5) In subsection (3)—

(a) in paragraph (a)—

(i) for “Court of Appeal” substitute “relevant Court”;

(ii) for the words from “direction” to “1980 Act” substitute “relevant direction”;

(b) in paragraph (b) for “Court of Appeal” substitute “relevant Court”.

(6) In subsection (4)—

(a) for the words from “report to” to “1980 Act” substitute “report to the relevant Court on the investigation of any matter specified in a relevant direction”;

(b) for “Court of Appeal”, in the second place where it occurs, substitute “relevant Court”.

(7) After subsection (7) add—

“(8) In this section “relevant Court”, in relation to a direction, means the court that gave the direction.”

6 In section 16 of that Act (assistance in connection with prerogative of mercy), after subsection (2) add—

“(3) In subsection (1) “conviction” includes a conviction by the Court Martial or the Service Civilian Court, and in subsection (2) “case” includes the case of such a conviction.”

7 (1) Section 18 of that Act (Government documents etc relating to current or old cases) is amended as follows.

(2) In subsection (2) at the end of paragraph (b) add “or

(c) is considering the case, or has at any earlier time considered the case, with a view to deciding whether to make a reference under section 34 of the Court Martial Appeals Act or whether to recommend the exercise of Her Majesty’s prerogative of mercy in relation to a conviction by the Court Martial or the Service Civilian Court.”

(3) After subsection (4) add—

“(5) The Secretary of State shall, if required by the Commission to do so, give to the Commission any document or other material which—

(a) contains representations made to him in relation to any case to which this subsection applies, or

(b) was received by him in connection with any such case otherwise than from a person serving in a government department,

and may give to the Commission any document or other material which is relevant to any such case but does not fall within paragraph (a) or (b).

(6) Subsection (5) applies to a case if the Secretary of State is considering the case, or has at any earlier time considered the case, as mentioned in subsection (2)(c).”

8 (1) Section 19 of that Act (power to require appointment of investigating officers) is amended as follows.

(2) In subsection (3) after “police” insert “or Provost Marshal”.

(3) In subsection (4)(b) for the words from “in another” to the end substitute “either in another police force selected by the chief officer or in a service police force selected by him.”

(4) After subsection (4) insert—

“(4A) A requirement under this section imposed on a Provost Marshal may be—

(a) a requirement to appoint a person serving in the service police force in relation to which he is Provost Marshal, or

(b) a requirement to appoint a person serving either in a police force selected by the Provost Marshal or in another service police force selected by him.”

(5) In subsection (5)—

(a) for the words from “imposed” to “may be” substitute “imposed otherwise than on a chief officer of police or a Provost Marshal may be”;

(b) in paragraph (a) after “body” insert “in relation to which the person on whom the requirement is imposed is the appropriate person”;

(c) in paragraph (b) for the words from “police force” to “having” substitute “police force or service police force, or in a public body (other than such a force) having”.

(6) In subsection (6)—

(a) after “police force” insert “or service police force”;

(b) after “(4)” insert “, (4A)”.

9 (1) Section 22 of that Act (meaning of “public body” etc) is amended as follows.

(2) In subsection (4) (meaning of “the appropriate person”), after “means” insert “, subject to subsection (4B)”.

(3) After subsection (4) add—

“(4A) Subsection (4B) applies in relation to—

(a) the Royal Navy, the Royal Marines, the Royal Fleet Reserve, the Royal Naval Reserve and the Royal Marines Reserve,

(b) the regular army (within the meaning of the Armed Forces Act 2006), the Army Reserve and the Territorial Army, and

(c) the Royal Air Force, the Royal Air Force Reserve and the Royal Auxiliary Air Force.

(4B) In relation to a public body mentioned in subsection (4A), “the appropriate person” means—

(a) in section 17, the Secretary of State;

(b) in sections 19 and 20—

(i) in the case of a body mentioned in subsection (4A)(a), the Provost Marshal for the Royal Navy Police,

(ii) in the case of a body mentioned in subsection (4A)(b), the Provost Marshal for the Royal Military Police,

(iii) in the case of a body mentioned in subsection (4A)(c), the Provost Marshal for the Royal Air Force Police.

(4C) In section 19 “service police force” has the same meaning as in the Armed Forces Act 2006.”

10 (1) Section 30 of that Act is amended as follows.

(2) In subsection (1) after the definition of “the Commission” insert—

• ““the Court Martial Appeals Act” means the Court Martial Appeals Act 1968,”.

(3) In subsection (2) (meaning of “sentence”), after paragraph (d) add—

“(e) in section 12A has the same meaning as in the Court Martial Appeals Act,

(f) in section 12B has the same meaning as in section 285 of the Armed Forces Act 2006.”

11 (1) In section 33 of that Act (extent), after subsection (4) add—

“(5) Nothing in this section affects the extent of—

(a) section 12A or 12B;

(b) section 14(4A) and (4B) so far as relating to the Court Martial Appeal Court; or

(c) section 14(5) so far as relating to the Service Civilian Court.

(6) Section 384 of the Armed Forces Act 2006 (Channel Islands, Isle of Man and British overseas territories) applies in relation to the provisions mentioned in subsection (5) above as it applies in relation to that Act.”