Courts-Martial (Appeals) Act 1968
1968 c.20
An Act to consolidate the Courts-Martial (Appeals) Act 1951 and the enactments amending it, including so much of the Administration of Justice Act 1960 as provides an appeal from the Courts-Martial Appeal Court to the House of Lords.
Act: Power to amend conferred (prosp.) by 2001 c. 19, ss. 30(4)(e), 39(2)
Words of enactment omitted under authority of Statute Law Revision Act 1948 (c. 62), s. 3
Act amended (women's services) by Armed Forces Act 1981 (c. 55, SIF 7:1), s. 20, Sch. 3 Pt. I para. 1
Act: power to amend conferred (25.8.2006) by Armed Forces Act 2001 (c. 19), ss. 30(4)(e), 39(2); S.I. 2006/2309, art. 2
Act modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 268(5), 383(2) (with s. 271(1)); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Act modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 231(2), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Act modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 235(1), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Act power to modify or exclude conferred (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 165(7), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Act modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 5 para. 23; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Act modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 192(2), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Act modified by 2006 c. 52, s. 232B(2) (as inserted (8.3.2012 for specified purposes) by Armed Forces Act 2011 (c. 18), ss. 17(1), 32(3); S.I. 2012/669, art. 3(d))
Act modified by 2006 c. 52, s. 269C(2) (as inserted (1.11.2013) by Armed Forces Act 2011 (c. 18), ss. 16(1), 32(3); S.I. 2013/2501, art. 3(c))
Part IF99THE COURT MARTIAL APPEAL COURT
Pt. 1 heading substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 2; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
1 The Court and its jurisdiction.
1
F100The Court Martial Appeal Court shall continue in existence and is in this Act referred to either as “the Appeal Court” or as “the Court”.
2
The Appeal Court shall be a superior court of record and shall, for the purposes of this Act and subject to its provisions, have full power to determine, in accordance with this Act, any question necessary to be determined for the purpose of doing justice in any case before the Court.
3
The powers of the Appeal Court shall be exercisable by them so far as they think it necessary or expedient in the interests of justice that they should be exercised, and the Court may issue any warrants necessary for enforcing their orders or sentences.
4
Except as provided by Part III of this Act, no appeal shall lie from any decision of the Appeal Court.
2C4 Judges.
1
The following shall be judges of the Appeal Court:—
a
b
such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose; and
c
such of the judges of Her Majesty’s F83Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.
2
The Lord Chancellor may appoint other persons, being persons of legal experience, to be judges of the Appeal Court and—
a
the appointment of a person under this subsection shall be for such term as may be determined by the Lord Chancellor, with the approval of the Treasury, before his appointment and shall be subject to such conditions as may be so determined; and
b
a person so appointed who ceases to hold office as a judge of the Appeal Court shall be eligible for reappointment.
3
There may be paid out of moneys provided by Parliament to the persons appointed under subsection (2) of this section to be judges of the Appeal Court such remuneration, and to all the judges of the Court such F253... allowances, as the Lord Chancellor may, with the approval of the Treasury, determine.
3 Other senior judges who may exercise powers of Appeal Court.
Any power under this Act which is exercisable by a judge of the Appeal Court may also be exercised—
a
by any judge . . . F2of the High Court;
b
by any Lord Commissioner of Justiciary;
c
by any judge of Her Majesty’s F83Court of Judicature of Northern Ireland,
notwithstanding that he is not for the time being a judge of the Appeal Court; and references in this Act to a judge of the Court shall be construed accordingly.
4 Sittings.
1
For the purpose of hearing and determining appeals under this Act, or any matter preliminary or incidental to an appeal, the Appeal Court shall be summoned in accordance with directions given F61in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
F1012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The Appeal Court shall sit at such place as F62such directions may provide, whether within or outside the United Kingdom.
F35
1
Subject to subsection (4) below, the Appeal Court shall be duly constituted if it consists of an uneven number of judges not less than three.
2
Where—
a
part of any proceedings before the Appeal Court has been heard by an uneven number of judges greater than three; and
b
one or more members of the Court as constituted for the purpose of those proceedings are unable to continue,
then, subject to subsection (4) below, the Court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three.
3
Subject to subsection (4) below, the Appeal Court shall, if it consists of two judges, be duly constituted for every purpose except—
a
determining an appeal against—
i
conviction; or
ii
a finding of not guilty by reason of insanity; or
iii
a finding of unfitness to stand trial F102or that the defendant did the act or made the omission charged against him;
b
determining an application for leave to appeal to the F84Supreme Court; and
c
refusing an application for leave to appeal to the Appeal Court against conviction or any such finding as is mentioned in paragraph (a)(ii) or (iii), other than an application which has been refused by a single judge.
4
At least one of the judges of which the Appeal Court consists at any sitting must be a judge of the Court by virtue of section 2(1) of this Act, except that where the Court is directed to sit at a place outside the United Kingdom the Lord Chancellor may, if he thinks it expedient to do so F67after consulting the Lord Chief Justice, direct that this provision shall not apply to the Court while sitting at that place.
5
Where an appeal has been heard by the Appeal Court and the Court as constituted for that purpose consists of an even number of judges, then, if those judges are equally divided, the case shall be re-argued before and determined by an uneven number of judges not less than three.
F666
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
6 Power of Master of the Rolls to act for Lord Chief Justice.
The Master of the Rolls may exercise the powers conferred on the Lord Chief Justice by sections 2 and 4 above if at any time the Lord Chief Justice is unable to exercise them himself or there is a vacancy in the office of Lord Chief Justice.
7 Court staff, salaries and pensions. C5
1
There shall be a registrar of the Appeal Court (in this Act referred to as “the registrar”) to be appointed by the Lord Chancellor, and the Lord Chancellor may appoint such other officers and servants of the Court as he may, with the approval of the Treasury as to numbers, determine.
2
The remuneration of the officers and servants of the Appeal Court shall be such as the Lord Chancellor may, with the approval of the Treasury, determine, and F4the principal civil service pension scheme within the meaning of section 2 of the M1Superannuation Act 1972 and for the time being in force shall, with the necessary adaptations, apply to officers and servants of the Court as it applies to other persons employed in the civil service of the State.
3
The remuneration of the officers and servants of the Appeal Court and such other expenses of the Court as the Treasury may sanction shall be defrayed out of moneys provided by Parliament.
Part IIF103APPEALS FROM THE COURT MARTIAL
Pt. 2 heading substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 6; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Right of appeal and initiating procedure
C62F1038 Right of appeal.
C211
Subject to the provisions of this Act, a person convicted by F104the Court Martial may, with the leave of the Appeal Court, appeal to the Court F5—
a
against his conviction; and
b
against any sentence (not being a sentence fixed by law) passed on him for the offence for which he was convictedF105, whether passed on conviction or in subsequent proceedings.
F421ZA
F1061A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1062
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1063
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1064
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F65
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9 Application for leave to appeal.
C54C221
Leave to appeal to the Appeal Court shall not be given except on an application in that behalf made by or on behalf of the appellant and lodged, within the prescribed period, with the registrar.
2
The application must be in the prescribed form and specify the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed.
3
The Appeal Court may extend the period within which an application for leave to appeal must be lodged, whether the period has expired or not.
4
Rules of court may provide that, in such circumstances as may be specified in the rules, an application which is lodged with a person (other than the registrar) specified in the rules shall be treated for purposes of subsection (1) above as having been lodged with the registrar; and it shall be the duty of the specified person, if an application is lodged with him in accordance with the rules, to act as follows:—
a
he shall forward the application to the registrar with as much expedition as practicable; and
b
if it appears to him practicable to do so, and in all the circumstances expedient, he shall forthwith furnish the registrar (before the receipt by the latter of the application) with such particulars of the application as will enable the registrar to prepare a copy of it.
F10710 Alternative procedure for appeal from court-martial abroad.
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11 Consideration of application by Appeal Court.
1
In considering whether or not to give leave to appeal the Appeal Court shall have regard to any expression of opinion made by F71... the Judge Advocate General that the case is a fit one for appeal, and if any such expression is so made they may, without more, give leave to appeal.
2
Where the Appeal Court dismiss an application for leave to appeal they may, if they consider the application to have been frivolous or vexatious, order that any sentence passed upon the applicant in the proceedings from which it was sought to bring the appeal shall begin to run from the day on which the Appeal Court dismiss the application.
Disposal of appeal
12 Power to quash conviction as F7unsafe.
F81
The Appeal Court—
C23a
shall allow an appeal against conviction by F108the Court Martial if they think that the conviction is unsafe; and
b
shall dismiss such an appeal in any other case.
2
If the Appeal Court allow an appeal against conviction, they shall quash the conviction.
F1093
Where the Appeal Court quash a conviction, the appellant is to be treated as if he had been acquitted by the Court Martial; but this does not apply if an order under section 19 authorising the appellant to be retried is made.
C24C6713F110Power to re-sentence when some but not all convictions successfully appealed.
1
This section applies where—
a
on a single occasion a person is sentenced by the Court Martial in respect of two or more offences; and
b
the Appeal Court allow an appeal against conviction in respect of some but not all of the offences.
C17C682
The Court may in respect of any offence of which the appellant remains convicted pass, in substitution for the sentence passed by the Court Martial, any sentence that—
a
they think appropriate; and
b
is a sentence that the Court Martial had power to pass.
3
But the Court may not exercise their powers under subsection (2) in such a way that the appellant's sentences (taken together) for all the offences of which he remains convicted are more severe than the sentences (taken together) passed on him by the Court Martial on the occasion mentioned in subsection (1)(a).
4
The reference in subsection (3) to the sentences passed by the Court Martial includes those passed by that court in respect of offences as respects which appeals against conviction have been allowed.
C25F11114 Substitution of conviction on different charge F111otherwise than after guilty plea.
F1121
This section applies where—
a
an appellant has been convicted of an offence to which he did not plead guilty;
b
the Court Martial could lawfully have found him guilty of some other offence; and
c
it appears to the Appeal Court on an appeal against conviction that the Court Martial must have been satisfied of facts which prove him guilty of that other offence.
C182
The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding of the F113Court Martial a finding of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the F113Court Martial, F114any sentence that—
a
they think appropriate;
C69b
is a sentence that the Court Martial would have had power to pass in respect of that other offence; and
c
is not more severe than the sentence passed by the Court Martial.
C2614AF43Substitution of conviction on different charge after guilty plea
1
This section applies where—
a
an appellant has been convicted of an offence to which he pleaded guilty,
b
if he had not so pleaded, he could lawfully have pleaded, or been found, guilty of some other offence, and
c
it appears to the Appeal Court on an appeal against conviction that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of that other offence.
C192
The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the appellant’s plea of guilty a plea of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the F115court-martial, such sentence as they think proper, being a sentence warranted by the relevant Service Act for that other offence, but not a sentence of greater severity.F115Court Martial, any sentence that—
a
they think appropriate;
C70b
is a sentence that the Court Martial would have had power to pass in respect of that other offence; and
c
is not more severe than the sentence passed by the Court Martial.
C27F11615 Variation of conviction so as to attract different sentence.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16F45Substitution of finding of insanity or findings of unfitness to stand trial etc.
1
This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of F117the opinion—
a
that the proper finding would have been one of not guilty by reason of insanity; or
b
that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.
F1181A
The Appeal Court shall, instead of allowing or dismissing the appeal, substitute for the finding appealed against—
a
a finding of not guilty by reason of insanity; or
b
findings that the appellant was unfit to stand trial and that he did the act or made the omission charged against him.
2
Sections 169(2) to (5) and 170 of, and Schedule 4 to, the 2006 Act apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to the Court Martial in a case in which section 169 of that Act applies.
3
Section 172 of that Act (meaning of “duly approved” etc) applies for the purposes of this section (and references there to the defendant are to be read as references to the appellant).
F2095
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F1196
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C73C16C15C14C13C56C58C52C60C53C65C7116AF9F120Appeals against sentence.
C281
Where, on a single occasion, the Court Martial passes two or more sentences on a person, an appeal or application for leave to appeal against any of those sentences is to be treated as an appeal or application in respect of both or all of them.
C29C202
On an appeal against sentence the Appeal Court may quash the sentence passed by the Court Martial and pass in substitution for it any sentence that—
a
they think appropriate; and
b
is a sentence that the Court Martial had power to pass in respect of the offence.
C293
But the Court may not exercise their powers under subsection (2) in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the Court Martial.
C36F12117 Term of sentence passed under s. 13, 14 F121, 14A or 16A.
C30F1221
Unless the Court otherwise direct, a sentence passed by the Appeal Court under section 13, 14, 14A or 16A takes effect from the beginning of the day on which the Court Martial passed sentence.
F1232
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F12417A Appeals by civilians: application of Service Act provisions.
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Retrial
F12518 Retrial generally excluded.
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19 Power to authorise retrial in certain cases.
1
The Appeal Court shall have the power, on quashing a conviction, to make an order authorising the appellant to be retried by F126the Court Martial, but shall only exercise this power when F10 . . . it appears to the Court that the interests of justice require that an order under this section should be made.
2
This section has effect notwithstanding F127section 63 of the 2006 Act (service proceedings barring subsequent service proceedings).
C313
F128An order under this section may authorise the appellant to be retried for —
a
the offence of which he was convicted by the F129Court Martial and in respect of which his appeal is allowed as mentioned in subsection (1) above;
b
any offence of which he could have been convicted F130by the Court Martial on a charge of the first-mentioned offence; or
c
any offence charged in the alternative in respect of which the F131Court Martial recorded no finding in consequence of convicting him of the first-mentioned offence.
4
A person who is to be retried under this section for an offence shall, if the Appeal Court so directs, be retried on a fresh charge or charges specified in the direction; F132if any such direction is made the Director of Service Prosecutions must bring the charge or charges so specified (which are to be regarded for the purposes of Part 5 of the 2006 Act as allocated for Court Martial trial).
F1335
Section 125 of the 2006 Act (powers of DSP after charge) has effect in relation to a charge on which a person is to be retried under this section (whether or not a fresh charge) subject to such modifications as may be contained in Court Martial rules (within the meaning of that Act).
20 Implementation of authority for retrial, and supplementary orders of Appeal Court.
F1341
Where—
a
an order under section 19 authorising the retrial of a person has been made, and
b
the person has not been arraigned (in pursuance of the order) within three months beginning with the date of the order,
the person may not be arraigned unless the Appeal Court give leave.
1A
A person who may not be arraigned without the leave of the Appeal Court may apply to the Court to set aside the order under section 19.
1B
On an application under subsection (1) or (1A) the Appeal Court may—
a
grant leave to arraign; or
b
set aside the order under section 19.
1C
But leave to arraign may be granted only if the Appeal Court are satisfied—
a
that the prosecution has acted with all due expedition; and
b
that there is a good and sufficient reason for a retrial in spite of the lapse of time since the order under section 19 was made.
1D
Where an order under section 19 authorising the retrial of a person for an offence is set aside, the person is to be treated as if he had been acquitted by the Court Martial of the offence.
1E
Where the Appeal Court authorise the retrial of a person they may—
a
by order authorise the keeping of that person in service custody—
i
for such period, ending not later than 8 days after the date the order is made, as the Court think appropriate; or
ii
if the person is legally represented and consents, for such period, not exceeding 28 days, as the Court think appropriate; or
b
require that person to comply with such requirements as seem to the Court to be necessary for a purpose mentioned in section 107(3) of the 2006 Act.
1F
Where the person is in service custody the Appeal Court may under subsection (1E)(b) impose a requirement that must be complied with before the person may be released.
1G
An order under subsection (1E)(a) is to be treated, for the purposes of Part 4 of the 2006 Act, as made under section 105(2) of that Act.
1H
A requirement imposed under subsection (1E)(b) is to be treated, for the purposes of Part 4 of the 2006 Act, as imposed under section 107(3) of that Act (and, where appropriate, by virtue of section 107(3)(a) of that Act).
2
The Appeal Court may, where they authorise a retrial, make such orders as appear to them to be necessary or expedient for the retention until the relevant time of property or money which has been restored, delivered or paid in pursuance of an order made on or in consequence of the original conviction or has been placed in safe custody while the operation of any such order is suspended.
F1352A
In subsection (2) “relevant time” means—
a
where arraignment takes place within the three months referred to in subsection (1)—
i
if the defendant is convicted on his retrial, the end of 28 days beginning with the date of conviction;
ii
otherwise, the time when the case is finally disposed of;
b
where arraignment does not take place within those three months, the end of those three months.
3
Where retrial is authorised in the case of a person who immediately before the date of the authorisation was liable to be detained in pursuance of F73an order or direction under United Kingdom mental health legislation, that F74order or direction shall continue in force until the relevant time as if his conviction had not been quashed.
F1363A
In subsection (3) “relevant time” means—
a
where arraignment takes place within the three months referred to in subsection (1), the time when the case is finally disposed of;
b
otherwise, the end of those three months.
4
F784A
Where retrial is authorised in the case of a person who—
a
was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;
b
was then made subject to a community treatment order (within the meaning of that Act); and
c
was subject to that community treatment order immediately before the date of the authorisation,
the order or direction under Part 3 of that Act and the community treatment order shall continue in force until the relevant time (as defined in subsection (3A)) as if his conviction had not been quashed.
4B
An order under subsection (1E)(a) is of no effect in relation to a person for so long as he is subject to a community treatment order.
F1385
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Schedule 1 to this Act contains additional provisions applicable to a retrial authorised by order of the Appeal Court under section 19 F139...
Insanity
C6321 Appeal against finding of not guilty by reason of insanity.
C321
F1421A
On an appeal under this section the Appeal Court—
a
shall (subject to subsection (2)) allow the appeal if they think the finding is unsafe; and
b
shall dismiss the appeal in any other case.
1B
Sections 19 and 20 and paragraph 2 of Schedule 1 apply in relation to appeals under this section as they apply in relation to appeals against conviction (and references there to conviction, and to related expressions, are to be read accordingly).
2
Where apart from this subsection—
a
an appeal against a finding of not guilty by reason of insanity would fall to be allowed; and
b
none of the grounds for allowing it relates to the question of the insanity of the appellant,
the Appeal Court may dismiss the appeal if they are of F143the opinion that but for the insanity of the appellant the proper finding would have been that he was guilty of an offence other than the offence charged.
22 Consequences where appeal under s. 21 allowed.
1
The following provisions shall have effect where an appeal against a finding of not guilty by reason of insanity is allowed by the Appeal Court.
C332
If the ground, or one of the grounds, for allowing the appeal is that the finding as to the appellant’s insanity ought not to stand and the Appeal Court are of F144the opinion that the proper finding would have been a finding of guilty of an offence (whether the offence charged or any other offence of which the F145Court Martial could have found him guilty), the Court shall substitute for the finding of the F145Court Martial a finding of guilty of that offence.
C353
On substituting a finding of guilty of an offence, the Appeal Court shall have the like powers of sentencing the appellant, and other powers, as the F146Court Martial would have had on the like finding of guilty; and section 17 of this Act shall apply as in the case of a sentence passed by the Court under F147a provision mentioned in section 17(1).
C34F1483A
If the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of the opinion mentioned in section 16(1)(b) (court below ought to have found defendant unfit to stand trial etc)—
a
the Court shall substitute for the finding of the Court Martial findings that the appellant was unfit to stand trial and that he did the act or made the omission charged against him; and
b
section 16(2) to (5) apply as they apply for the purposes of section 16.
3B
Section 172 of the 2006 Act (meaning of “duly approved” etc) applies for the purposes of subsection (3A) (and references there to the defendant are to be read as references to the appellant).
4
If the case is not within subsection (2) or (3A), the Appeal Court must quash the finding appealed against.
5
Where the Appeal Court quash a finding of not guilty by reason of insanity, the appellant is to be treated as if he had been acquitted by the Court Martial; but this does not apply if an order under section 19 authorising the appellant to be retried is made.
F14923Substitution of findings of unfitness to stand trial etc.
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F1323A Substitution of finding of not guilty.
1
This section applies where, in accordance with section 22(4) of this Act, the Appeal Court substitute a finding of not guilty and the Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion—
a
that the appellant is suffering from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
b
that he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.
2
The Appeal Court shall—
a
in the case of an appellant detained pursuant to an admission order made by a court-martial, make an order for his continued detention;
b
in any other case, make an order that the appellant be admitted for assessment, in accordance with regulations made by the Secretary of State, to such hospital as may be specified by the Secretary of State.
3
An order under subsection (2) above shall be treated as if it had been made by a civil court in England and Wales, Scotland or Northern Ireland, as the Appeal Court may direct, and the appropriate mental health legislation shall apply accordingly with such modifications as may be prescribed by regulations made by the Secretary of State.
4
The power of the Secretary of State under subsections (2)(b) and (3) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
5
In this section “hospital” and “mental disorder” have the same meanings as in the appropriate mental health legislation.
Unfitness to stand trial
C6424 Appeal against finding of unfitness.
C371
F1512
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25F48Disposal of appeal under s. 24
1
This section applies to appeals under section 24 of this Act.
F1521A
The Appeal Court—
a
shall allow an appeal against a finding if they think the finding is unsafe; and
b
shall dismiss such an appeal in any other case.
1B
If the Appeal Court allow an appeal against a finding they shall quash the finding.
2
Where the Appeal Court F153quash a finding that the appellant is unfit to stand trial—
a
the F154Court may make an order authorising the appellant to be tried for the offence with which he was charged; and
F1563
Where the Appeal Court quash a finding that the defendant did the act or made the omission charged, the appellant is to be treated as if he had been acquitted by the Court Martial; but this does not apply if an order under subsection (2)(a) authorising the appellant to be tried is made.
F44Appeal against order made in cases of insanity or unfitness to stand trial
Ss. 25A, 25B and cross-heading inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 13 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)
F15725ARight of appeal against hospital order etc.
1
A person may, with the leave of the Appeal Court, appeal against the making by the Court Martial of an order within subsection (2) in respect of him.
2
The orders are—
a
a hospital order;
b
an interim hospital order;
c
a service supervision order (as defined by section 170 of the 2006 Act).
25BDisposal of appeal under s. 25A
C391
If on an appeal under section 25A of this Act the Appeal Court consider that the appellant should be dealt with differently from the way in which the F158Court Martial dealt with him—
a
they may quash any order which is the subject of the appeal; and
b
they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the F158Court Martial had power to make.
2
F1613
Section 16(5) applies in relation to interim hospital orders made by virtue of this section as it applies in relation to such orders made by virtue of section 16.
4
The fact that an appeal is pending against a service supervision order (as defined by section 170 of the 2006 Act) shall not affect any power conferred on any other court to revoke or amend the order.
F207Appeals following references by the CCRC
S. 25C and cross-heading inserted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 25 para. 2; S.I. 2009/1028, art. 2(a)
25CPower to dismiss certain appeals following references by the CCRC
1
This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 12A(1)(a), (7) or (8) of the Criminal Appeal Act 1995.
2
Notwithstanding anything in section 12, 21 or 25 of this Act, the Appeal Court may dismiss the appeal if—
a
the only ground for allowing it would be that there has been a development in the law since the date of the conviction or finding that is the subject of the appeal, and
b
the condition in subsection (3) is met.
3
The condition in this subsection is that if—
a
the reference had not been made, but
b
the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,
the Court would not think it appropriate to grant the application by exercising the power conferred by section 9(3).
General procedural provisions
F16226 Presentation, of appellant’s case.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27F163Right of appellant to be present.
1
An appellant (whether or not in custody) is entitled to be present on the hearing of his appeal.
2
Subsection (1) does not apply to an appellant in custody—
a
where his appeal is on a ground involving only a question of law,
b
on an application by him for leave to appeal, or
c
on any proceedings preliminary or incidental to an appeal,
unless the Appeal Court give him leave to be present.
28 Evidence.
1
F213For the purposes of an appeal or an application for leave to appeal, the Appeal Court may—
a
order the production of any document, exhibit or other thing connected with the proceedings the production of which appears to them necessary for the determination of the case;
F212b
order any witness to attend for examination and be examined before the Court (whether or not he was called in the proceedings from which the appeal lies); and
F2101A
The power conferred by subsection (1)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that subsection to—
a
the Appeal Court;
b
the appellant;
c
the respondent.
F152
The Appeal Court shall, in considering whether to receive any evidence, have regard in particular to—
a
whether the evidence appears to the Court to be capable of belief;
b
whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
c
whether the evidence would have been admissible F165in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
d
whether there is a reasonable explanation for the failure to adduce the evidence F166in those proceedings.
3
4
F214For the purposes of an appeal or an application for leave to appeal, the Appeal Court may order the examination of any witness whose attendance may be required under subsection (1)(b) of this section to be conducted in the prescribed manner before any judge of the Court or before any other person appointed by the Court for that purpose, and allow the admission of any depositions so taken as evidence before the Court.
F2115
In this section, “respondent” includes a person who will be a respondent if leave to appeal is granted.
29 Power to call for report by member of F167the Court Martial.
1
The Appeal Court may order the taking of such steps as are requisite to obtain from any member of the F168court in the proceedings from which the appeal lies a report giving his opinion on the case or on any point arising in it, or containing a statement as to any facts of which the ascertainment appears to the Court to be material for the purpose of determining the case.
F1692
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29AF206Power 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.
30 Other powers for facilitating disposal of appeal.
1
Where any question arising on an appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Appeal Court conveniently be conducted before them, the Court may order the reference of the question in the prescribed manner for inquiry and report to a special commissioner appointed by them, and act upon the report of the commissioner so far as they think fit to adopt it.
2
The Appeal Court may appoint a person with special expert knowledge to act as assessor to the Court in any case where it appears to them that such knowledge is required for the proper determination of the case.
3
There may be paid out of moneys provided by Parliament to a special commissioner to whom a question is referred under this section for inquiry and report, and to a person appointed as assessor to the Appeal Court, such remuneration and such travelling and subsistence allowances as may be prescribed by regulations made by the Lord Chancellor.
4
The power of the Lord Chancellor under subsection (3) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Costs
C4031 Costs of successful appeal.
1
Where the Appeal Court allow an appeal F236... they may if they think fit, direct the payment by the Secretary of State of costs to the appellant.
2
The costs which may under this section be directed to be paid are such sums as appear to the Appeal Court reasonably sufficient to compensate the appellant for any expenses properly incurred by him in the F80proceedings (in the Appeal Court and below).F237, subject to subsection (3), section 31A and regulations under section 33B(1)(d).
F2353
Where the Appeal Court consider that there are circumstances that make it inappropriate for the appellant to recover the whole of the sums mentioned in subsection (2), a direction under this section must be for the payment of such lesser sums as they consider just and reasonable.
4
The Appeal Court must fix the sums to be paid by the Secretary of State in the direction if they consider it appropriate to do so and—
a
the appellant agrees the sums, or
b
subsection (3) applies.
5
Where the Appeal Court do not fix the sums to be paid by the Secretary of State in the direction—
a
they must describe in the direction any reduction required under subsection (3), and
b
the sums must be fixed by means of a determination made by or on behalf of the Appeal Court in accordance with procedures specified in regulations made by the Lord Chancellor.
31AF229Legal costs
1
The costs which the Appeal Court may direct the Secretary of State to pay under section 31 do not include legal costs, except where regulations made by the Lord Chancellor provide otherwise.
2
Regulations under this section may, in particular, include—
a
provision for an exception to arise where a determination has been made by a person specified in the regulations,
b
provision requiring the Appeal Court, when they direct the payment of a sum that includes a sum in respect of legal costs, to include a statement to that effect in the direction, and
c
provision that the Appeal Court may not direct the payment of a sum in respect of legal costs exceeding an amount specified in the regulations.
3
In this section—
“legal costs” means fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs;
“advocacy services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide;
“expert witness costs” means amounts payable in respect of the services of an expert witness, including amounts payable in connection with attendance by the witness at court or elsewhere;
“litigation services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to proceedings, or contemplated proceedings, to provide.
E132 Costs against appellant.
1
Where the Appeal Court dismiss an appeal or an application for leave to appeal they may, if they think fit, order the appellant or applicant (as the case may be) to pay to the Secretary of State the whole or any part of the costs of the appeal or application, including the costs of copying or transcribing any documents for the use of the Appeal Court.
2
An order under this section may be enforced—
F18a
in the same manner as an order for costs made by the criminal division of the Court of Appeal F19. . .; or
F170b
if the appellant or applicant is a member of the regular or reserve forces (as defined by section 374 of the 2006 Act), by making deductions from pay due to him,
or partly in the one way and partly in the other.
3
Any sums which by virtue of subsection (2)(a) above are recovered from a person by the Secretary of State shall be paid into the Exchequer.
E232 Costs against appellant.
1
Where the Appeal Court dismiss an appeal or an application for leave to appeal they may, if they think fit, order the appellant or applicant (as the case may be) to pay to the Secretary of State the whole or any part of the costs of the appeal or application, including the costs of copying or transcribing any documents for the use of the Appeal Court.
2
An order under this section may be enforced—
a
in the same manner as an order for the payment of costs made by the High Court in civil proceedings; or
F170b
if the appellant or applicant is a member of the regular or reserve forces (as defined by section 374 of the 2006 Act), by making deductions from pay due to him,
or partly in the one way and partly in the other.
3
Any sums which by virtue of subsection (2)(a) above are recovered from a person by the Secretary of State shall be paid into the Exchequer.
33 Witnesses’ expenses.
1
The Appeal Court may, whether or not they exercise their powers under either of the two foregoing sections, order the payment out of moneys provided by Parliament of such sums as appear to the Court reasonably sufficient to compensate any person properly attending to give evidence on an appeal under this Part of this Act or any proceedings preliminary or incidental thereto (whether or not he gives evidence) for the expense, trouble or loss of time properly incurred in or incidental to his attendanceF239, subject to subsection (3) and regulations under section 33B (1)(d).
F1711A
Subsection (1) applies in relation to a registered medical practitioner who makes a written report to the Appeal Court in pursuance of a request made by the court as it applies in relation to a person who is called to give evidence at the instance of the court.
2
The amount of any costs ordered to be paid under this section shall be ascertained as soon as practicable by the registrar.
F2383
Sums ordered to be paid out of money provided by Parliament under subsection (1) may not include sums in respect of expert witness costs (as defined in section 31A), unless regulations made by the Lord Chancellor provide otherwise.
33AF20 Appellant’s expenses.
F2401
Without prejudice to section 31 above, where an appellant who is not in custody appears before the Appeal Court either on the hearing of his appeal or in any preliminary or incidental proceedings, the Appeal Court may direct the Secretary of State to pay him the expenses of his appearance.
F2412
The expenses which the Appeal Court may direct the Secretary of State to pay under this section do not include legal costs (as defined in section 31A), except where regulations made by the Lord Chancellor provide otherwise.
3
Regulations under this section may, in particular, include—
a
provision for an exception to arise where a determination has been made by a person specified in the regulations,
b
provision requiring the Appeal Court, when they direct the payment of a sum that includes a sum in respect of legal costs, to include a statement to that effect in the direction, and
c
provision that the Appeal Court may not direct the payment of a sum in respect of legal costs exceeding an amount specified in the regulations.
33BF230Further provision about costs
1
The Lord Chancellor may by regulations—
a
make provision as to the sums that may be directed or ordered to be paid under section 31, 33 or 33A, whether by specifying rates or scales or by making other provision as to the calculation of the sums,
b
make provision as to the circumstances in which and conditions under which such sums may be paid or directed or ordered to be paid,
c
make provision requiring such sums to be fixed having regard to regulations under paragraphs (a) and (b),
d
make provision requiring such sums to be calculated in accordance with such regulations (whether or not that results in the fixing of an amount that the court considers reasonably sufficient to compensate the person concerned), and
e
make provision as to the review of determinations of sums directed to be paid under section 31.
2
Regulations under this section may provide that provision as to the calculation of sums (whether in the form of rates or scales or other provision) may be determined by the Lord Chancellor with the consent of the Treasury.
33CF231Regulations
1
Regulations under sections 31, 31A, 33, 33A and 33B may, in particular—
a
make different provision in relation to different cases and different classes of case, including different provision in relation to different expenses, trouble and loss, different directions and orders and different areas, and
b
make different provision in relation to the fixing of a sum in a direction or order and the fixing of a sum by means of a determination.
2
A power to make regulations under those sections is exercisable by statutory instrument.
3
A statutory instrument containing regulations under those sections is subject to annulment in pursuance of a resolution of either House of Parliament, subject to subsection (4).
4
A statutory instrument containing (whether alone or with other provision) regulations under section 31A, 33 or 33A may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
Special references to Appeal Court
C4234 Reference of cases by Service authorities.
C43C411
If, in the case of the conviction of a person by F172the Court Martial,—
a
b
it appears to the Secretary of State, upon consideration of matters appearing to him not to have been brought to the notice of the court-martial at the trial, to be expedient that the finding of the court-martial should be considered or reconsidered by the Appeal Court,
F173the Judge Advocate General or the Secretary of State, as the case may be, may refer the finding to the Court.
C432
F1743
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F234
The Secretary of State may, if consideration by the Appeal Court appears to him for any reason desirable, refer the sentence passed on any person convicted by F175the Court Martial to the Appeal Court.
5
Any reference under subsection (4) above shall be treated as an appeal by the person convicted against sentence for all purposes except those of section 32 of this Act.
35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F24
Supplementary
35AF208Effect of interim hospital orders
1
This section applies where the Appeal Court—
a
make an interim hospital order by virtue of any provision of this Part, or
b
renew an interim hospital order so made.
2
The Court Martial shall be treated for the purposes of section 38(7) of the Mental Health Act 1983 (absconding offenders) as the court that made the order.
36 Powers under Part II which are exercisable by single judge.
1
F75The following powers of the Appeal Court ..., that is to say the power—
F176a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
to give leave to appeal;
c
to extend the period within which an application for leave to appeal must be lodged;
F177ca
to make orders, or impose requirements, under section 20(1E);
d
to make orders under section 20(2) and discharge or revoke such orders;
e
to allow an appellant to be present at any proceedings;
f
to order witnesses to attend for examination; F52...
g
to make an order under section 32 for the payment of costs,
F53h
to make orders under section 28(1)(a).
F215ha
to renew an interim hospital order made by them by virtue of any provision of this Part;
F178i
to give a direction under section 3(4) of the Sexual Offences (Amendment) Act 1992 (direction disapplying provision as to anonymity of victim);
j
to give leave under section 14(4B) of the Criminal Appeal Act 1995 (leave to add grounds of appeal on reference by Criminal Cases Review Commission);
F228k
to make a witness anonymity order under Chapter 2 of Part 3 of the Coroners and Justice Act 2009;
l
to discharge or vary a witness anonymity order under any of sections 91, 92 and 93 of that Act;
F227...
2
If the judge refuses an application on the part of an appellant to exercise in his favour any of the powers mentioned in subsection (1) above (other than the power to make an order for the payment of costs), the appellant, upon making a requisition in that behalf within the prescribed period and in the prescribed form and manner, shall be entitled to have the application determined by the Appeal Court as duly constituted F25for the purpose in accordance with section 5 of this Act.
36AF26 Powers under Part II which are exercisable by registrar.
1
The following powers of the Appeal Court under this Part of this Act, namely the power—
a
to extend the time within which notice of appeal or of application for leave to appeal may be given; F54...
b
to order a witness to attend for examination, F55and—
c
to make orders under section 28(1)(a)
may be exercised by the registrar in the same manner as they may be exercised by the Court and subject to the same restrictions.
2
If the registrar refuses an application on the part of an appellant to exercise in his favour any power specified in subsection (1) above, the appellant shall be entitled to have the application determined by any judge of the Appeal Court.
36BF50Procedural directions: powers of single judge and registrar
1
The power of the Appeal Court to determine an application for procedural directions may be exercised by—
a
a judge of the Appeal Court, or
b
the registrar.
2
“Procedural directions” means directions for the efficient and effective preparation of—
a
an application for leave to appeal, or
b
an appeal,
under this Part.
3
A judge of the Appeal Court may give such procedural directions as he thinks fit—
a
when acting under subsection (1);
b
on a reference from the registrar;
c
of his own motion, when he is exercising, or considering whether to exercise, any power of his in relation to the application or appeal.
4
The registrar may give such procedural directions as he thinks fit—
a
when acting under subsection (1);
b
of his own motion.
36CAppeals against procedural directions
F2161
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2172
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Subsection (4) applies if the registrar gives, or refuses to give, procedural directions.
4
A judge of the Appeal Court may, on an application to him under subsection (5)—
a
confirm, set aside or vary any procedural directions given by the registrar, and
b
give such procedural directions as he thinks fit.
5
An application under this subsection may be made by—
a
an appellant;
b
the F81Director of Service Prosecutions, if the directions—
i
relate to an application for leave to appeal and appear to need the F82Director of Service Prosecutions' assistance to give effect to them,
ii
relate to an application for leave to appeal which is to be determined by the Appeal Court, or
iii
relate to an appeal.
C4437F179Provision of record of proceedings of the Court Martial.
In the case of every appeal or application for leave to appeal to the Appeal Court, the Judge Advocate General must provide the registrar, in accordance with rules of court, with a record of the proceedings of the Court Martial.
37AF27F28 False statements in computer record certificates.
1
Any person who in a certificate tendered under paragraph 8 of Schedule 3 to the Police and Criminal Evidence Act 1984 (computer records) in evidence before the Appeal Court makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable—
a
on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;
b
on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.
2
Proceedings for an offence under this section committed outside the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
3
In this section “statutory maximum” has the meaning given by section 74 of the Criminal Justice Act M21982.
38 Defence of appeals.
It shall be the duty of the F180Director of Service Prosecutions to undertake the defence of any appeal to the Appeal Court under this Part of this Act.
Part IIIF181APPEAL FROM COURT MARTIAL APPEAL COURT TO F83Court of Judicature
Pt. 3 heading substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 41; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
39 Right of appeal.
1
An appeal lies to F85the Supreme Court, at the instance of the accused or the F182Director of Service Prosecutions, from any decision of the Appeal Court on an appeal to them under Part II of this Act F218or the Court Martial (Prosecution Appeals) Order 2009, whether given by them when sitting within or outside the United Kingdom.
F2481A
An appeal lies to the Supreme Court, at the instance of the acquitted person or the prosecuting officer, from any decision of the Appeal Court on an application under article 8(1) of the Armed Forces (Retrial for Serious Offences) Order 2013.
2
The appeal lies only with the leave of the Appeal Court or F85the Supreme Court; and such leave shall not be granted unless it is certified by the Appeal Court that a point of law of general public importance is involved in the decision and it appears to F86the Appeal Court or F85the Supreme Court, as the case may be, that the point is one which ought to be considered by F85the Supreme Court.
F2493
In relation to an appeal under subsection (1A), references in this Part to an accused are references to the acquitted person.
40 Application for leave to appeal.
1
An application to the Appeal Court for leave to appeal to F97the Supreme Court shall be made within the period of F5728 days beginning with the F58relevant date ; and an application to F97the Supreme Court for leave shall be made within the period of F5728 days beginning with the date on which the application is refused by the Appeal Court.
F561A
In subsection (1), “the relevant date” means—
a
the date of the Appeal Court’s decision, or
b
if later, the date on which the Appeal Court gives reasons for its decision.
2
F97The Supreme Court or the Appeal Court may, upon application made at any time by the accused F250or, in the case of an appeal under section 39(1A), by the prosecuting officer, extend the time within which an application may be made by him to F97the Supreme Court or F98the Appeal Court under subsection (1) above.
3
An appeal shall be treated as pending until any application for leave to appeal is disposed of and, if leave to appeal is granted, until the appeal is disposed of; and for purposes of this Part of this Act an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it may be made, if it is not made within that time.
41 Hearing and disposal of appeal.
F92C10C11C121
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F922
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C453
For the purpose of disposing of an appeal under this Part of this Act, the F93Supreme Court may exercise any powers of the Appeal Court or may remit the case to the Court.
42 Bail.
1
When a person F69... F68, other than a person appealing or applying for leave to appeal from a decision on an appeal under the F219Court Martial (Prosecution Appeals) Order 2009 , appeals, or applies for leave to appeal, to the F87Supreme Court from a decision of the Appeal Court, F87the Appeal Court shall have power to grant him bail pending the appeal.
F702
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43 Detention of accused.
F1831
The Appeal Court F221shall make one of the orders specified in subsection (1A) where—
a
but for the decision of the Appeal Court, the accused would be liable to be detained; and
b
immediately after that decision, the Director of Service Prosecutions is granted leave to appeal or gives notice that he intends to apply for leave to appeal.
1A
F222The orders specified in this subsection are —
a
b
an order directing that, so long as any appeal to the F83Court of Judicature is pending, the accused is not to be released except on bail.
F223c
an order that the accused be released without bail.
1B
Where an order within subsection (1A)(b) is made, the Appeal Court may grant the accused bail pending the appeal.
F2201C
The Appeal Court may make an order within subsection (1A)(c) only if they think that it is in the interests of justice that the accused should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.
2
An order F225within subsection (1A)(a) or (b) shall (unless the appeal has been previously disposed of) cease to have effect at the expiration of the period for which the accused would have been liable to be detained but for the decision of the Appeal Court.
3
An order made under this section for the detention of a person who, but for the decision of the Appeal Court, would be liable to be detained in pursuance of an order or direction under United Kingdom mental health legislation shall be an order authorising his continued detention in pursuance of that order or direction; and the relevant provisions of that legislation with respect to persons liable to be detained thereunder (including provisions as to the renewal of authority for detention and the removal or discharge of patients) shall apply accordingly.
F793A
The relevant provisions of the Mental Health Act 1983 with respect to community treatment orders (within the meaning of that Act) shall also apply for the purposes of subsection (3).
4
F2265
The accused shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—
a
the Appeal Court have made an order within subsection (1A)(c), or
b
the Appeal Court have made an order within subsection (1A)(a) or (b) but the order has ceased to have effect by virtue of subsection (2) or the accused has been released or discharged by virtue of subsection (3).
43AF77Continuation of community treatment order
1
The Appeal Court may make an order under this section where—
a
but for the decision of the Appeal Court, the accused would be liable to recall; and
b
immediately after that decision, the Director of Service Prosecutions is granted leave to appeal or gives notice that he intends to apply for leave to appeal.
2
For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.
3
An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as any appeal to the F83Court of Judicature is pending.
4
Where the Appeal Court makes an order under this section, the relevant provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.
5
An order under this section shall (unless the appeal has been previously disposed of) cease to have effect at the end of the period for which the accused would, but for the decision of the Appeal Court, have been—
a
liable to recall; or
b
where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.
6
Where the Appeal Court has power to make an order under this section and either no such order is made or the accused is discharged by virtue of subsection (4) or (5) above before the appeal is disposed of, the accused shall not be liable to be again detained as a result of the decision of the F83Court of Judicature on the appeal.
44 Presence of accused at hearing.
Where the accused is detained pending an appeal from the Appeal Court to F94the Supreme Court, he shall not be entitled to be present on the hearing of the appeal or of any proceedings preliminary or incidental thereto unless F95Supreme Court Rules authorise him to be present, or F96the Supreme Court or the Appeal Court give him leave to be present.
45 Effect of appeal on sentence.
1
2
F18446 Restitution of property.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46AF232Costs: application to Appeal Court by Director of Service Prosecutions
1
Where the Appeal Court dismiss an application for leave to appeal to the Supreme Court made by the Director of Service Prosecutions, the Appeal Court may direct the payment by the Secretary of State of such sums as appear to them to be reasonably sufficient to compensate the accused for any expenses properly incurred by the accused in resisting the application, subject to—
a
subsection (2), and
b
regulations under section 47A(1)(d).
2
The sums which the Appeal Court may direct the Secretary of State to pay do not include legal costs (as defined in section 31A), except where regulations made by the Lord Chancellor provide otherwise.
3
Regulations under subsection (2) may, in particular, include—
a
provision for an exception to arise where a determination has been made by a person specified in the regulations,
b
provision requiring the Appeal Court, when they direct the payment of a sum that includes a sum in respect of legal costs, to include a statement to that effect in the direction, and
c
provision that the Appeal Court may not direct the payment of a sum in respect of legal costs exceeding an amount specified in the regulations.
46BCosts: application to Appeal Court by accused
Where the Appeal Court dismiss an application for leave to appeal to the Supreme Court made by the accused—
a
the Appeal Court may make the like order as may be made by the Court under section 32(1) of this Act where they dismiss an application for leave to appeal to the Court,
b
an order made under this section may be enforced in the manner described in section 32(2) of this Act, and
c
section 32(3) of this Act applies in relation to any sum recovered by virtue of section 32(2)(a) (as applied by this section).
47 Costs F243: application to Supreme Court .
C461
Where F245... F89the Supreme Court dismiss an application for leave to appeal to F89the Supreme Court and the application was made by the F185Director of Service Prosecutions, F245F89... the Supreme Court may direct the payment by the Secretary of State of such sums as appear to F245F89... the Supreme Court to be reasonably sufficient to compensate the accused for any expenses properly incurred by him in resisting the application.
2
Where F245... F89the Supreme Court dismiss an application for leave to appeal to F89the Supreme Court and the application was made by the accused, F245F89... the Supreme Court may make the like order as may be made by the Court under section 32(1) of this Act where they dismiss an application for leave to appeal to the Court; and any order made under this subsection may be enforced in the manner described in section 32(2) of this Act.
F2422A
Section 32(3) of this Act applies in relation to any sum recovered by virtue of section 32(2)(a) (as applied by subsection (2)).
C473
F32On determining an appeal from the Appeal Court, F89the Supreme Court may, if they think fit, direct the payment by the Secretary of State of such sums as appear to the House to be reasonably sufficient to compensate the accused for any expenses properly incurred by him in the F186proceedings (in the F83Court of Judicature and below).F246subject to—
a
subsection (3A), and
b
regulations under section 47A(1)(d).
F2443A
The costs which the Supreme Court may direct the Secretary of State to pay do not include legal costs (as defined in section 31A) incurred in proceedings in a court below, except where regulations made by the Lord Chancellor provide otherwise.
3B
Regulations under subsection (3A) may, in particular, include—
a
provision for an exception to arise where a determination has been made by a person specified in the regulations,
b
provision requiring the Supreme Court, when they direct the payment of a sum that includes a sum in respect of legal costs, to include a statement to that effect in the direction, and
c
provision that the Supreme Court may not direct the payment of a sum in respect of legal costs exceeding an amount specified in the regulations.
4
47AF233Further provision about costs
1
The Lord Chancellor may by regulations—
a
make provision as to the sums that may be directed to be paid under section 46A or 47(3), whether by specifying rates or scales or by making other provision as to the calculation of the sums,
b
make provision as to the circumstances in which and conditions under which such sums may be paid or directed to be paid,
c
make provision requiring such sums to be fixed having regard to regulations under paragraphs (a) and (b), and
d
make provision requiring such sums to be calculated in accordance with such regulations (whether or not that results in the fixing of an amount that the court considers reasonably sufficient to compensate the person concerned).
2
The power under subsection (1)(d) may not be exercised in respect of sums ordered to be paid by the Supreme Court in respect of expenses incurred in proceedings before that court.
3
Regulations under this section may provide that provision as to the calculation of sums (whether in the form of rates or scales or other provision) may be determined by the Lord Chancellor with the consent of the Treasury.
47BF234Regulations
1
Regulations under sections 46A, 47 and 47A may, in particular, make different provision in relation to different cases and different classes of case, including different provision in relation to different expenses, trouble and loss, different directions and orders and different areas.
2
A power to make regulations under those sections is exercisable by statutory instrument.
3
A statutory instrument containing regulations under those sections is subject to annulment in pursuance of a resolution of either House of Parliament, subject to subsection (4).
4
A statutory instrument containing (whether alone or with other provision) regulations under section 46A or 47 may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
48 Powers under Part III which are exercisable by single judge.
The following powers of the Appeal Court under this Part of this Act, that is to say the power—
a
to extend the time for making an application for leave to appeal;
b
to make an order for or in relation to bail; and
c
to give leave to be present at the hearing of any proceedings preliminary or incidental to an appeal,
may be exercised by any judge of the Court; but where the judge refuses an application to exercise any of the said powers, the applicant shall be entitled to have the application determined by the Appeal Court.
48AF33 Appeals on behalf of deceased persons.
1
Where a person has died—
a
any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Appeal Court; and
b
where any relevant appeal was begun by him while he was alive or is begun in relation to his case by virtue of paragraph (a) above F187or by a reference by the Criminal Cases Review Commission, any further step which might have been taken by him in connection with the appeal if he were alive may be taken by a person so approved.
2
In this section “relevant appeal” means—
a
an appeal under section 8, 21 or 24 of this Act; or
b
an appeal under section 39 of this Act from any decision of the Appeal Court on an appeal under any of those sections.
3
Approval for the purposes of this section may only be given to—
a
the F60widow, widower or surviving civil partner of the dead person;
b
a personal representative of the dead person; or
4
F189Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission, An application for such approval may not be made after the end of the period of one year beginning with the date of death.
5
Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.
6
The power of the Appeal Court to approve a person under this section may be exercised by any judge of the Appeal Court in the same manner as by the Court and subject to the same provisions; but if the judge refuses the application, the applicant shall be entitled to have the application determined by the Appeal Court.
7
In subsection (3)(b) above “personal representative” means—
a
for England and Wales, a person who is a personal representative within the meaning of section 55(1)(xi) of the M3Administration of Estates Act 1925;
b
for Scotland, an executor confirmed to the estate of the dead person; or
c
for Northern Ireland, a person who is one of the personal representatives within the meaning of the M4Administration of Estates Act (Northern Ireland) 1955.
Part IV Miscellaneous and General
49 Rules of Court.
1
Rules of court made F63in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005 may provide for regulating the procedure and practice to be followed in the Appeal Court and for any other matters which by this Act are expressed to be subjects for rules of court.
2
Rules of court made for the purposes of any provision of this Act may make different provision in relation to different classes of cases and may provide for any incidental or supplementary matters for which it appears to the F64person making the rules to be necessary or expedient for the purposes of that provision to provide.
F653
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F654
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
50 Duties of registrar with respect to appeals etc.
C481
The registrar shall take all necessary steps for obtaining the determination of an appeal or application under this Act, and shall obtain and lay before the Appeal Court in proper form all documents, exhibits and other things relating to the proceedings in the F190Court Martial which appear necessary for the proper determination of the appeal or application.
2
The registrar shall furnish the necessary forms and instructions relating to applications for leave to appeal under this Act to any person who demands them, to persons in charge of places where persons sentenced by F191the Court Martial may lawfully be confined for the purpose of serving their sentences and to such other persons as he thinks fit.
3
Every person in charge of such a place as is referred to in subsection (2) above shall cause the said forms and instructions to be placed at the disposal of persons confined in that place who wish to apply for leave to appeal to the Appeal Court, or from that Court to the F90Supreme Court.
51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F34
52 Removal of prisoners.
Rules or regulations made under—
F192a
section 300 of the 2006 Act;
d
section 47 of the M5Prison Act 1952;
F35e
section 39 of the Prisons (Scotland) Act 1989; or
f
section 13 of the M7Prison Act (Northern Ireland) 1953
may provide in what manner an appellant, when in custody, is to be taken to, kept in custody at, and brought back from any place at which he is entitled to be present for purposes of Part II or Part III of this Act or any place to which the Appeal Court or a judge of it may order him to be taken for the purpose of any proceedings of the Court.
F3653. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
54 Saving for prerogative.
C491
Nothing in this Act is to be taken as affecting any right of Her Majesty, by virtue of Her Royal prerogative or otherwise, to quash a conviction by F193the Court Martial, so far as regards the exercise thereof at a time before whichever of the following two events first occurs—
a
the receipt by the registrar of an application for leave to appeal under Part II of this Act against the conviction; or
b
the receipt by him of particulars of such an application furnished in pursuance of section 9 of this Act.
2
Nothing in this Act is to be taken as affecting Her Majesty’s Royal prerogative of mercy.
F5955 Modification of provisions in Parts II and III for capital cases.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56F194Modifications for protected prisoners of war
As respects a protected prisoner of war (as defined by section 7(1) of the Geneva Conventions Act 1957), this Act applies in relation to a prisoner of war court-martial constituted under a Royal Warrant as it applies in relation to the Court Martial, subject to such modifications as may be contained in the Royal Warrant.
57 Interpretation.
1
In this Act, unless the context otherwise requires,—
F195“the 2006 Act” means the Armed Forces Act 2006;
F196...
F196...
“appellant” includes a person who F197... wishes to appeal under Part II of this Act to the Appeal Court;
F196...
F196...
F196...
F198“Director of Service Prosecutions” has the meaning given by section 374 of the 2006 Act;
F196...
“enactment” includes an enactment of the Parliament of Northern Ireland;
F49“hospital order” has the meaning given in section 37 of the Mental Health Act 1983;
F49“interim hospital order” has the meaning given in section 38 of that Act;
F196...
F196...
“the Lord Chief Justice” means the Lord Chief Justice of England;
F196...
F196...
“prescribed” means prescribed by rules of court; F37. . .
“the registrar” means the registrar of the Appeal Court. F38; and
F196...
“sentence”, in relation to an offence, includes any order made by a court when dealing with an offender.
F196...
F1992
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1992A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1992B
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
4
Any reference in this Act to another enactment is a reference thereto as amended by or under any other enactment, including this Act.
5
Any reference in this Act to an enactment of the Parliament of Northern Ireland includes a reference to an enactment corresponding thereto and for the time being in force in Northern Ireland.
F20158 Consequential amendments of enactments.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59 Transitional provisions.
The transitional provisions set out in Schedule 5 to this Act shall have effect.
60 Repeals. C6
The enactments specified in the second column of Schedule 6 to this Act are hereby repealed to the extent specified in the third column of that Schedule.
61 Short title and commencement.
1
This Act may be cited as the F202Court Martial Appeals Act 1968.
C72
This Act shall come into force on the day appointed under section 106(5) of the M8Criminal Justice Act 1967 for the coming into force of section 98 of that Act.
SCHEDULES
F203SCHEDULE 1Provisions as to Retrial
Sch. 1 substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 54; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
1
This Schedule applies where an order under section 19 is made authorising the retrial of a person.
2
Evidence given at the retrial must be given orally if it was given orally at the original trial, unless—
a
all parties to the retrial agree otherwise;
b
section 116 of the Criminal Justice Act 2003 applies (admissibility of hearsay evidence where a witness is unavailable); or
c
the witness is unavailable to give evidence, otherwise than as mentioned in subsection (2) of that section, and section 114(1)(d) of that Act applies (admission of hearsay evidence under residual discretion).
3
If the person is convicted on the retrial, the Court Martial may not pass a sentence that is (or sentences that, taken together, are) more severe than the sentence (or the sentences, taken together) passed at the original trial.
4
In sections 246 and 247 of the 2006 Act (crediting of time in service custody) as they apply in relation to the retrial, references to the offender being kept in service custody include references to his being kept in custody (whether service or otherwise) in pursuance of a sentence passed at the original trial.
F51SCHEDULE 2 Procedural and other Modifications for Capital Cases
Sch. 2 repealed (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 131(b), Sch. 10; S.I. 2005/910, art. 3(y)
F51 Modifications of Part II
F511
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F512
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F513
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F514
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F515
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F51 Modifications of Part III
F516
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F517
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F204SCHEDULE 3 Modifications in Relation to Prisoners of War
Sch. 3 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 55, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
F204...
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F204
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F204
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F204
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F204
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F205SCHEDULE 4 Consequential Amendment of Enactments
Sch. 4 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 56, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
F205...
F205
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F205
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F205
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F205
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F205
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F205
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 5 Transistional Provisions
1
1
Any right of appeal subsisting immediately before the commencement of this Act by virtue of an enactment repealed thereby shall after that commencement be treated as subsisting by virtue of the corresponding enactment in this Act.
2
Any appeal or application pending before the said commencement under an enactment so repealed may be presented and disposed of in accordance with the provisions of this Act corresponding to those in force immediately before the said commencement and applicable to the appeal or application.
2
1
In so far as any order, appointment, rule or regulation made, petition presented, direction given or other thing done under an enactment repealed by this Act could have been made, presented, given or done under a corresponding provision of this Act, it shall not be invalidated by the repeal of that enactment but shall have effect as if made, presented, given or done under that corresponding provision.
2
Any document referring to an enactment repealed by this Act shall, so far as may be necessary for preserving its effect, be construed as referring, or as including a reference, to the corresponding enactment in this Act.
3
The mention of particular matters in this Schedule shall not be taken to affect the general application of section 38 of the M9Interpretation Act 1889 with regard to the effect of repeal
C8SCHEDULE 6 Repeals
The text of ss. 58, 60, Sch. 6 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any repeals or amendments which may have been made prior to 1.2.1991
Act wholly in force at 1.9.1968 see s. 61(1)