Armed Forces Act 1996

The Courts-Martial (Appeals) Act 1968 (c. 20)

6 For section 16 of the [1968 c. 20.] Courts-Martial (Appeals) Act 1968 (“the 1968 Act”) there shall be substituted the following section—

“16 Substitution of finding of insanity or findings of unfitness to plead 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 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.

(2) Subject to subsections (3) and (4) below, the Appeal Court shall make one of the following orders in respect of the appellant, namely—

(a) an admission order;

(b) a guardianship order;

(c) a supervision and treatment order; or

(d) an order discharging him absolutely,

as they think most suitable in all the circumstances of the case.

(3) The Appeal Court may not make an order under subsection (2)(b), (c) or (d) above if the offence to which the appeal relates is an offence the sentence for which is fixed by law.

(4) An order under subsection (2)(a), (b) or (c) 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.

(5) The provisions of, or made under, the relevant Service Act in relation to admission orders, guardianship orders and supervision and treatment orders shall apply to the Appeal Court as if—

(a) references to a court-martial were references to the Appeal Court;

(b) references to the accused were references to the appellant,

and with such other modifications as may be prescribed by regulations made by the Secretary of State.

(6) The power of the Secretary of State under subsections (4) and (5) 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.”

7 In section 21(1) of the 1968 Act (appeal against finding of not guilty by reason of insanity), after the word “except” there shall be inserted the words “section 8(2) and”.

8 In section 22(4) of the 1968 Act (consequences where appeal under section 21 allowed), at the beginning there shall be inserted the words “Subject to section 23 below,”.

9 For section 23 of the 1968 Act there shall be substituted the following sections—

“23 Substitution of findings of unfitness to plead etc

(1) This section applies where, on an appeal under section 21 of this Act, 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 opinion that—

(a) the case is not one where there should have been a finding of not guilty; but

(b) 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.

(2) Subject to subsections (3) and (4) below, the Appeal Court shall make one of the following orders in respect of the appellant, namely—

(a) an admission order;

(b) a guardianship order;

(c) a supervision and treatment order; or

(d) an order discharging him absolutely,

as they think most suitable in all the circumstances of the case.

(3) The Appeal Court may not make an order under subsection (2)(b), (c) or (d) above if the offence to which the appeal relates is an offence the sentence for which is fixed by law.

(4) An order under subsection (2)(a), (b) or (c) 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.

(5) The provisions of, or made under, the relevant Service Act in relation to admission orders, guardianship orders and supervision and treatment orders shall apply to the Appeal Court as if—

(a) references to a court-martial were references to the Appeal Court;

(b) references to the accused were references to the appellant,

and with such other modifications as may be prescribed by regulations made by the Secretary of State.

(6) The power of the Secretary of State under subsections (4) and (5) 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.

23A 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.”.

10 (1) Section 24 of the 1968 Act (appeal against finding of unfitness to stand trial) shall be amended as follows.

(2) In subsection (1)—

(a) for the words “his trial” there shall be substituted the words “trial and to have done the act or made the omission charged against him”; and

(b) for the words “the finding” there shall be substituted the words “either or both of those findings”.

(3) In subsection (2), after the word “except” there shall be inserted the words “section 8(2) and”.

11 For section 25 of the 1968 Act there shall be substituted the following section—

“25 Disposal of appeal under section 24

(1) This section applies to appeals under section 24 of this Act.

(2) Where the Appeal Court allow an appeal against a finding that the appellant is unfit to stand trial—

(a) the appellant may be tried accordingly for the offence with which he was charged; and

(b) the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant.

(3) Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity).”

12 (1) Section 57 of the 1968 Act (interpretation) shall be amended as follows.

(2) In subsection (1)—

(a) before the definition of “the Air Force Act” there shall be inserted the following definition—

““admission order” has the same meaning as in the relevant Service Act;”;

(b) after the definition of “appellant” there shall be inserted the following definition—

““the appropriate mental health legislation” means—

(a) in a case where an order is treated as if it had been made by a civil court in England and Wales, the [1983 c. 20.] Mental Health Act 1983;

(b) in a case where an order is treated as if it had been made by a civil court in Scotland, the [1984 c. 36.] Mental Health (Scotland) Act 1984 and Part VI of the [1995 c. 43.] Criminal Procedure (Scotland) Act 1995;

(c) in a case where an order is treated as if it had been made by a civil court in Northern Ireland, the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986;”;

(c) after the definition of “army court-martial” there shall be inserted the following definition—

““civil court” has the same meaning as in the relevant Service Act;”;

(d) after the definition of “court-martial;” there shall be inserted the following definition—

““duly approved” means—

(a) approved for the purposes of section 12 of the [1983 c. 20.] Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

(b) approved for the purposes of section 20 or 39 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 by a Health Board as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); or

(c) appointed for the purposes of Part II of the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986 by the Mental Health Commission for Northern Ireland;”;

(e) after the definition of “enactment” there shall be inserted the following definition—

““guardianship order” has the same meaning as in the relevant Service Act;”;

(f) at the end there shall be inserted the following definition—

““supervision and treatment order” has the same meaning as in the relevant Service Act.”

(3) After subsection (2) there shall be inserted the following subsections—

“(2A) For the purposes of the provisions of sections 16, 23 and 23A of this Act which permit the Appeal Court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (2B) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the Appeal Court may require the signatory of any such report to be called to give oral evidence.

(2B) Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then—

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

(b) if the appellant is not so represented, the substance of the report shall be disclosed to him; and

(c) the appellant may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the appellant or on his behalf.”