Courts-Martial (Appeals) Act 1968

SCHEDULES

Section 20.

SCHEDULE 1E+W+S+N.I. Provisions as to Retrial

Part IE+W+S+N.I. Navy

1On the retrial of any person under section 19 of this Act, the record of the evidence given by any witness at the original trial may, with the leave of the court-martial, be read as evidence—E+W+S+N.I.

(a)by agreement between the prosecution and the defence; or

(b)if the court-martial is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success or that owing to the exigencies of the service it is not practicable for him to attend as aforesaid,

and may be so read without further proof [F1if it forms part of the original proceedings of the original court-martial or a copy thereof and those proceedings are, or that copy is, admissible as evidence under section 129C of the M1Naval Discipline Act].

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Amendments (Textual)

Marginal Citations

2Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the M2Naval Discipline Act, not being a sentence of greater severity than that passed on the original conviction.E+W+S+N.I.

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Part IIE+W+S+N.I. Army

3On the retrial of a person under section 19 of this Act, the record of the evidence given by any witness at the original trial may, with the leave of the court-martial, be read as evidence—E+W+S+N.I.

(a)by agreement between the prosecution and the defence; or

(b)if the court-martial is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success or that owing to the exigencies of the service it is not practicable for him to attend as aforesaid,

and may be so read without further proof if it forms part of the original proceedings of the original court-martial or a copy thereof and those proceedings are, or that copy is, admissible as evidence under section 200 of the M3Army Act.

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4Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the M4Army Act, not being a sentence of greater severity than that passed on the original conviction.E+W+S+N.I.

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Part IIIE+W+S+N.I. Air Force

5On the retrial of a person under section 19 of this Act, the record of the evidence given by any witness at the original trial may, with the leave of the court-martial, be read as evidence—E+W+S+N.I.

(a)by agreement between the prosecution and the defence; or

(b)if the court-martial is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success or that owing to the exigencies of the service it is not practicable for him to attend as aforesaid,

and may be so read without further proof if it forms part of the original proceedings of the original court-martial or a copy thereof and those proceedings are, or that copy is, admissible as evidence under section 200 of the M5Air Force Act.

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6Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the M6Air Force Act, not being a sentence of greater severity than that passed on the original conviction.E+W+S+N.I.

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Part IVE+W+S+N.I. Provision applying to all three Services

7Where a person authorised under section 19 of this Act to be retried is convicted on retrial and sentenced to imprisonment or detention, there shall be taken into account in calculating the period for which he is liable to imprisonment or to be detained in pursuance of that sentence—E+W+S+N.I.

(a)any time before the original conviction was quashed which would have been taken into account in calculating the period for which he would have been liable to be imprisoned or detained in pursuance of a sentence of imprisonment or detention imposed at the original trial; and

(b)any time after the quashing of his original conviction which he has spent under close arrest awaiting retrial.

Section 55.

SCHEDULE 2E+W+S+N.I. Procedural and other Modifications for Capital Cases

Modifications of Part IIE+W+S+N.I.

1(1)In the case of a conviction involving sentence of death, the right of appeal [F2against conviction and any right of appeal against sentence] conferred by section 8(1) of this Act on the person convicted shall be exercisable without his being required to present a petition to the Defence Council; and accordingly in such a case subsection (2) of that section shall not apply.E+W+S+N.I.

(2)In the case of such a conviction, the power of the Appeal Court under section 9(3) of this Act to extend the period within which an application for leave to appeal must be lodged shall not be exercisable.

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Amendments (Textual)

2(1)The following shall apply where a conviction by court-martial involves sentence of death.E+W+S+N.I.

(2)The sentence shall not in any case be executed until the expiration of the period for appealing under Part II of this Act (that is to say the period prescribed under section 9 as the period within which an application for leave to appeal must be lodged).

(3)Subject to the following paragraph, if such an application is duly lodged, the sentence shall not be executed until either the application is finally refused, or it is withdrawn, or the appeal is determined or abandoned.

F33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

F3Sch. 2 para. 3 repealed (1.4.1997 with savings) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1996/304, art. 2 (with art. 3)

4Any appeal to the Appeal Court against a conviction involving sentence of death [F4or against such a sentence itself] and any application for leave to appeal to the Court against any such conviction [F4or sentence] shall be heard and determined with as much expedition as practicable.E+W+S+N.I.

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Amendments (Textual)

5The Appeal Court shall not have power, by virtue of section 22 of this Act, to impose sentence of death; and where apart from this paragraph a sentence of death would be required by law, the sentence shall (whatever the circumstances) be one of imprisonment for life.E+W+S+N.I.

Modifications of Part IIIE+W+S+N.I.

6In a case involving sentence of death the power of the House of Lords or the Court under section 40 of this Act to extend the time within which an application by the accused for leave to appeal may be made under that section shall not be exercisable.E+W+S+N.I.

7(1)Where, in a case involving sentence of death, an appeal to the Appeal Court is dismissed, the sentence shall not in any case be executed until after the expiration of the time within which an application for leave to appeal to the House of Lords may be made; and, if such an application is duly made, the sentence shall not be executed while that application, and any appeal for which leave is granted thereon, is pending.E+W+S+N.I.

(2)In such a case, any application for leave to appeal to the House of Lords and any appeal for which leave is granted on such an application, shall be heard and determined with as much expedition as is practicable.

Section 56.

SCHEDULE 3E+W+S+N.I. Modifications in Relation to Prisoners of War

1In this Schedule “protected prisoner of war[F5has the same meaning as in section 7(1) of] the M7Geneva Conventions Act 1957; and “Royal Warrant” means a Royal Warrant governing the maintenance of discipline among prisoners of war.E+W+S+N.I.

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Amendments (Textual)

F5Words in Sch. 3 para. 1 substituted (1.10.1996) by 1996 c. 46, s. 35(1), Sch. 6 para. 13; S.I. 1996/2474, art. 2 (with art. 3)

Marginal Citations

2In relation to a protected prisoner of war, this Act shall have effect as if the expression “army court-martial” included a prisoner of war court-martial constituted under a Royal Warrant.E+W+S+N.I.

3In relation to a protected prisoner of war this Act shall have effect as if a reference to a Royal Warrant were substituted—E+W+S+N.I.

(a)for any reference in section 13, 14 or 15 to the relevant Service Act;

(b)for the reference in section 16(2) to the relevant Service enactment;

(c)for the reference in section 17(2)(b) to the M8Army Act; and

(d)for the reference in section 37(2) to the enactment relating to the revision of the finding or sentence of an army court-martial.

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4Paragraph 3(1) of Schedule 2 to this Act shall not have effect in relation to a protected prisoner of war.E+W+S+N.I.

Section 58.

SCHEDULE 4E+W+S+N.I. Consequential Amendment of Enactments

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Modifications etc. (not altering text)

C1The text of Sch. 4 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and, except as specified, does not reflect any repeals or amendments which may have been made prior to 1.2.1991

The Army Act 1955 (c.18)E+W+S+N.I.

Section 113In subsection (3), for the words “paragraph (b) of subsection (3) of section 4 of the words M9 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 9(4)(b)of the M10courts-martial (Appeals) Act 1968".E+W+S+N.I.

After section 113 there shall be inserted the following section—

Power of reviewing authority to authorise retrial.E+W+S+N.I.

113A(1)The following provisions of the courts-martial (Appeals) Act 1968, that is to say,—

  • section 19,

  • section 20, and

  • Parts II and IV of Schedule 1,

(power of courts-martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by Her Majesty or the Defence Council under section 113 of this Act of the findings of a court-martial, as they apply in relation to an appeal to the courts-martial Appeal Court.

(2)

Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.

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Section 118In subsection (1), for the words “subsection (7) of section 4 of the M11court-martial (Appeals) Act 1951" there shall be substituted the words “section 11(2) of the M12courts-martial (Appeals) Act 1968".E+W+S+N.I.

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Section 138In subsction (9), for the words (in paragraph(a)) “Part I of the M13courts-martial (Appeals) Act 1951" there shall be substituted the words “Part II of the M14courts-martial (Appeals) Act1968"; and for the words (in paragraph (e)) “the said Act of 1951" there shall be substituted the words “Part II of the said Act of 1968".E+W+S+N.I.

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The Air Force Act 1955 (c. 19)E+W+S+N.I.

Section 113In subsecton (3), for the words “paragraph (b) of subsection (3) of section 4 of the M15courts-martial (Appeals) Act 1951" there shall be substituted the words “section 9(4)(b) of the M16courts-martial (Appeals) Act 1968".E+W+S+N.I.

After section 113 there shall be inserted the following section—

Power of reviewing authority to authorise retrial.E+W+S+N.I.

113A(1)The following provisions of the courts-martial (Appeals) Act 1968, that is to say—

  • section 19,

  • section 20, and

  • Parts III and IV of Schedule 1,

(power of courts-martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by Her Majesty or the Defence Council under secton 113 of this Act of the findings of a court-martial, as they apply in relation to an appeal to the courts-martial Appeal Court.

(2)Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.

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Section 118In subsection (1), for the words “Subsection (7) of section 4 of the M17Courts-Martial (Appeals) Act 1951"there shall be substituted the words “section 11(2) of the M18courts-martial (Appeals) Act 1968".E+W+S+N.I.

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Section 138In subsection (9), for the words (in paragraph(a)) “Part I of the M19courts-martial (Appeals) Act 1951"there shall be substituted the words “Part II of the M20courts-martial (Appeals) Act 1968"; and for the words (in paragraph (e)) “the said Act of 1951" there shall be substituted the words “Part II of the said Act of 1968".E+W+S+N.I.

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The Naval Discipline Act 1957 (c.53)E+W+S+N.I.

section 70In subsection (3),for the words “paragraph (b) of subsection (3) of section 4 of the M21courts-martial (Appeals ) Act 1951" there shall be substituted the words “section 9(4)(b) of the M22courts-martial (Appeals) Act 1968".E+W+S+N.I.

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Section 71At the end of the section there shall be insrted the following section—E+W+S+N.I.

Power to authorise retrial.E+W+S+N.I.

71A(1)The following provisions of the courts-martial (Appeals) Act 1968, that is to say,—

  • sectin 19,

  • section 20, and

  • Parts I and IV of Schedule 1,

(power of courts-martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modificatons in relation to the review by the Defence Council under section 70 of this Act of the findings of a court-martial as they apply in relation to an appeal to the courts-martial Appeal Court.

(2)Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be.

section 77In subsection (1), for the words (in paragraph (a)) “Part I of the M23courts-martial (Appeals) Act 1951" there shall be substituted the words “Part II of the M24 courts-martial (Appeals) Act 1968".E+W+S+N.I.

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In subsection (1), for the words “the said Act of 1951" there shall be substituted the words “Part II of the said Act of 1968".

Section 85In subsection (1), for the words “subsection (7) of section 4 of the M25 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 11(2) of the M26courts-martial (Appeals) Act 1968".E+W+S+N.I.

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

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Amendments (Textual)

F6Entry relating to the Mental Health Act 1959 repealed by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F7

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Amendments (Textual)

F7Entry relating to Mental Health (Scotland) Act 1960 repealed by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(2), Sch. 5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F8

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Amendments (Textual)

F8Entry relating to Mental Health Act (Northern Ireland) 1961 repealed by S.I. 1986/596, art. 6(e)

Section 59.

SCHEDULE 5E+W+S+N.I. 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.E+W+S+N.I.

(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.E+W+S+N.I.

(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.

3The mention of particular matters in this Schedule shall not be taken to affect the general application of section 38 of the M27Interpretation Act 1889 with regard to the effect of repealE+W+S+N.I.

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Section 60.

SCHEDULE 6E+W+S+N.I. Repeals

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C2The 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