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Armed Forces Act 2006

Chapter 4 – Findings of Unfitness to Stand Trial and Insanity.Introduction

330.Sections 166 to 172 enable the Court Martial to consider and determine issues of unfitness to stand trial and insanity and make appropriate orders in relation to persons who are unfit to stand trial or not guilty by reason of insanity. These provisions are similar to the relevant sections of the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”), as amended by the Domestic Violence, Crime and Victims Act 2004.

Section 166: Fitness to stand trial

331.Subsections (1) to (4) provide that on a trial by Court Martial the issue of whether the defendant is fit to stand trial must, subject to subsections (5) and (6), be decided as soon as it arises, and is an issue to be determined by the judge advocate alone. For the purposes of the Act, a person is unfit to stand trial if he is suffering from such a disability that apart from the provisions of the 1964 Act, it would preclude his being tried on indictment in England and Wales.

332.Subsection (5) provides that the judge advocate may postpone consideration of the defendant’s fitness to stand trial to the opening of the defence case if it is expedient to do so and in the defendant’s interest, and subsection (6) provides that if the defendant is found not guilty before that issue is considered, it shall not be determined.

333.Subsection (7) provides that a judge advocate may only determine whether a defendant is fit to stand trial after having considered the written or oral evidence of two or more registered medical practitioners, at least one of whom must be duly approved for the purposes of section 12 of the Mental Health Act 1983 (“the 1983 Act”).

Section 167: Finding that defendant did the act or made the omission charged

334.Subsections (1) and (2) provide that where a judge advocate has determined that a person is unfit to stand trial, the trial shall not proceed further but the court must determine whether it is satisfied that the defendant did the act, or omission, which constitutes the offence with which he is charged. Subsections (3) and (4) provide that if the court determines that he did the act or omission, it must make a finding that he did the act or omission in respect of that charge, and that if it determines that he did not do the act or omission, it must find him not guilty of that charge.

335.Subsection (5) specifies the evidence on which a determination under subsection (2) must be made.

336.Subsection (6) provides that section 160 (Court Martial decisions) does not apply to a determination or finding under this section. It also provides that the question of whether the court is satisfied that the defendant did the act or omission charged against him is to be determined by the lay members alone, and an affirmative answer to that question may be given by a majority of those members.

Section 168: Findings of insanity

337.This section provides that if on a trial by the Court Martial the court is satisfied that the defendant did the act charged against him, and that at the time of that act he was insane, then the court must find the defendant not guilty of that offence by reason of insanity.

338.Subsection (3) specifies the medical evidence required before a finding under this section may be made.

339.Subsection (4) provides that a determination or finding under this section is to be made in the same way as a finding under section 167 is to be made. Only the lay members of the court have a vote; and the court is satisfied that the defendant did the act charged, and was insane, if a majority of those members vote to that effect.

Section 169: Powers where person unfit to stand trial or not guilty by reason of insanity

340.This section provides a range of disposals when there is a finding of unfitness to stand trial or not guilty by reason of insanity. The powers under this section may only be exercised by a judge advocate, the lay members having no role.

341.Subsection (2) sets out the court’s options on a finding of unfitness or insanity. The first is to make a hospital order under section 37 of the 1983 Act, which can also be accompanied by a restriction order; the second is to make a service supervision order (defined by section 170), which is analogous to a supervision order under Schedule 1A to the 1964 Act; and the third is to order the person’s absolute discharge.

342.Subsection (3) specifies that a hospital order means an order under section 37 of the 1983 Act and that a restriction order means an order under section 41 of that Act, both as modified by Schedule 4 to the Act. Subsection (4) provides that the criteria for imposing a hospital order, with or without a restriction order, are those in the 1983 Act as modified.

343.Subsection (5) provides that where the sentence for the offence in question is fixed by law, and the relevant criteria for making a hospital order are satisfied, then the court must make a hospital order with a restriction order.

Section 170: Service supervision orders

344.This section defines service supervision orders, and sets out the conditions that must be satisfied for them to be made. It also empowers the Secretary of State to make further provisions in regulations in respect of them.

345.Subsection (1) provides that a “service supervision order” means an order whereby the person in respect of whom it is made is subject to the supervision of a specified person (the “supervising officer”) for a specified period. Under subsection (2) that period must not exceed the maximum period of a civilian supervision order set out in the 1964 Act (currently two years).

346.Subsection (3) specifies the criteria that the court must be satisfied are met before making a service supervision order.

347.Subsection (4) provides that a service supervision order may require, in accordance with the regulations made pursuant to subsection (5), a supervised person to submit to medical treatment.

Section 171: Remission for trial

348.Subsection (1) empowers the Secretary of State to remit for trial by the Court Martial a person who is the subject of a hospital order with a restriction order under section 169 if, after having consulted the medical practitioner in charge of the person’s treatment, he is satisfied that the person is no longer unfit to stand trial.

349.Subsection (2) provides that where a person is remitted for trial under this section he must be transferred to service custody (at which point, under subsection (3), the hospital order and restriction order cease to have effect) and be brought as soon as practicable before a judge advocate for a review of whether he should continue to be kept in service custody. Subsection (2)(b) provides that on such a review he shall be treated as on a review of custody after charge under section 108.

Section 172: Provision supplementary to sections 166 and 168

350.Subsection (1) defines “duly approved” as approved by the Secretary of State for the purposes of section 12 of the 1983 Act as having special experience in the diagnosis or treatment of mental disorder as defined within that Act.

351.Subsection (2) provides that, subject to subsection (4), a report written by a registered medical practitioner may be received in evidence without further proof of the signature or the professional qualifications of the author of the report. Subsection (4) specifies certain protections for the defendant where it is not the defence that has put the report in evidence, including a requirement to have such a report disclosed to him (or his representative, or parent or guardian), and a right to have the report’s signatory called to give evidence.

352.Subsection (3) provides that the court may call the author of such a report to court to give evidence.

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