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Armed Forces Act 2001

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This is the original version (as it was originally enacted).

21Review of sentences by Courts-Martial Appeal Court

This section has no associated Explanatory Notes

(1)After section 113A of each of the 1955 Acts there is inserted—

113BScope of section 113C

(1)Section 113C of this Act applies to any case—

(a)which is of a description specified for the purposes of this paragraph in an order made by the Secretary of State, or

(b)in which a sentence is passed by a court-martial on a person—

(i)in respect of an offence against section 70 of this Act which satisfies the condition in subsection (2) below, or

(ii)in respect of two or more offences against that section each of which satisfies that condition.

(2)The condition referred to in subsection (1)(b) above is that the corresponding civil offence is—

(a)an offence which would be triable by a civil court in England and Wales only on indictment, or

(b)an offence of a description specified for the purposes of this paragraph in an order made by the Secretary of State.

(3)For the purposes of this section and section 113C of this Act—

(a)“sentence”, in relation to an offence, includes any order made by a court-martial in dealing with an offender, including an order that no punishment be awarded, and

(b)any reference to a sentence passed by a court-martial is a reference to any such sentence as it has effect following any review under section 113 of this Act of the sentence or the finding to which it relates (and, accordingly, the reference in paragraph (a) above to an order that no punishment be awarded includes a reference to the quashing of a sentence on a review).

(4)The power of the Secretary of State to make an order under subsection (1)(a) or (2)(b) above shall be exercisable by statutory instrument.

(5)A statutory instrument containing an order under subsection (1)(a) or (2)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

113CReview of sentences by Courts-Martial Appeal Court

(1)If it appears to the Attorney General—

(a)that a sentence passed on a person by a court-martial has been unduly lenient, and

(b)that the case is one to which this section applies,

he may, with the leave of the Courts-Martial Appeal Court, refer the case to them for them to review the sentencing of that person.

(2)On a reference under subsection (1) above the Courts-Martial Appeal Court may—

(a)quash the sentence passed by the court-martial on the person; and

(b)in place of it pass such sentence, being a sentence which would have been open to the court-martial on the findings made against that person, as they think appropriate.

(3)Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that—

(a)the court-martial erred in law as to its powers of sentencing or the reviewing authority so erred as to its powers on a review under section 113 of this Act; or

(b)the sentence passed on the person was not that required by section 70(3B), (3E) or (3G) of this Act.

(4)Where the Courts-Martial Appeal Court have concluded their review of a case referred to them under this section, the Attorney General or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceedings to the House of Lords for their opinion, and the House shall consider the point and give their opinion on it accordingly, and either remit the case to the Courts-Martial Appeal Court to be dealt with or deal with it themselves; and section 41(1) of the Courts-Martial (Appeals) Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(5)A reference under subsection (4) above shall be made only with the leave of the Courts-Martial Appeal Court or the House of Lords; and leave shall not be granted unless it is certified by the Courts-Martial Appeal Court that the point of law is of general public importance and it appears to the Courts-Martial Appeal Court or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

(6)For the purpose of dealing with a case under this section the House of Lords may exercise any powers of the Courts-Martial Appeal Court.

(7)A sentence passed by the Courts-Martial Appeal Court or the House of Lords under subsection (2)(b) above shall be treated for the purposes of this Act as a sentence passed by a court-martial.

(8)The Secretary of State may by regulations made by statutory instrument make supplementary provision with respect to references and applications under this section; and the regulations may in particular contain provision equivalent to that made by any provision of Schedule 3 to the Criminal Justice Act 1988 (which contains supplementary provisions relating to reviews under Part 4 of that Act), subject to such modifications as the Secretary of State thinks fit.

(9)A statutory instrument containing regulations under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(2)After section 71A of the 1957 Act there is inserted—

71ABScope of section 71AC

(1)Section 71AC of this Act applies to any case—

(a)which is of a description specified for the purposes of this paragraph in an order made by the Secretary of State, or

(b)in which a sentence is passed by a court-martial on a person—

(i)in respect of an offence against section 42 of this Act which satisfies the condition in subsection (2) below, or

(ii)in respect of two or more offences against that section each of which satisfies that condition.

(2)The condition referred to in subsection (1)(b) above is that the civil offence is—

(a)an offence which would be triable by a civil court in England and Wales only on indictment, or

(b)an offence of a description specified for the purposes of this paragraph in an order made by the Secretary of State.

(3)For the purposes of this section and section 71AC of this Act—

(a)“sentence”, in relation to an offence, includes any order made by a court-martial in dealing with an offender, including an order that no punishment be awarded, and

(b)any reference to a sentence passed by a court-martial is a reference to any such sentence as it has effect following a review under section 70 of this Act of the sentence or the finding to which it relates (and, accordingly, the reference in paragraph (a) above to an order that no punishment be awarded includes a reference to the quashing of a sentence on a review).

(4)The power of the Secretary of State to make an order under subsection (1)(a) or (2)(b) above shall be exercisable by statutory instrument.

(5)A statutory instrument containing an order under subsection (1)(a) or (2)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

71ACReview of sentences by Courts-Martial Appeal Court

(1)If it appears to the Attorney General—

(a)that a sentence passed on a person by a court-martial has been unduly lenient, and

(b)that the case is one to which this section applies,

he may, with the leave of the Courts-Martial Appeal Court, refer the case to them for them to review the sentencing of that person.

(2)On a reference under subsection (1) above the Courts-Martial Appeal Court may—

(a)quash the sentence passed by the court-martial on the person; and

(b)in place of it pass such sentence, being a sentence which would have been open to the court-martial on the findings made against that person, as they think appropriate.

(3)Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that—

(a)the court-martial erred in law as to its powers of sentencing or the reviewing authority so erred as to its powers on a review under section 70 of this Act; or

(b)the sentence passed on the person was not that required by section 42(1B), (1E) or (1G) of this Act.

(4)Where the Courts-Martial Appeal Court have concluded their review of a case referred to them under this section, the Attorney General or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceedings to the House of Lords for their opinion, and the House shall consider the point and give their opinion on it accordingly, and either remit the case to the Courts-Martial Appeal Court to be dealt with or deal with it themselves; and section 41(1) of the Courts-Martial (Appeals) Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(5)A reference under subsection (4) above shall be made only with the leave of the Courts-Martial Appeal Court or the House of Lords; and leave shall not be granted unless it is certified by the Courts-Martial Appeal Court that the point of law is of general public importance and it appears to the Courts-Martial Appeal Court or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

(6)For the purpose of dealing with a case under this section the House of Lords may exercise any powers of the Courts-Martial Appeal Court.

(7)A sentence passed by the Courts-Martial Appeal Court or the House of Lords under subsection (2)(b) above shall be treated for the purposes of this Act as a sentence passed by a court-martial.

(8)The Secretary of State may by regulations made by statutory instrument make supplementary provision with respect to references and applications under this section; and the regulations may in particular contain provision equivalent to that made by any provision of Schedule 3 to the Criminal Justice Act 1988 (which contains supplementary provisions relating to reviews under Part 4 of that Act), subject to such modifications as the Secretary of State thinks fit.

(9)A statutory instrument containing regulations under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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