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Armed Forces Act 2006

Schedule 8 – Amendment of the Courts-Martial (Appeals) Act 1968

817.This Schedule makes a number of amendments to the Courts-Martial (Appeals) Act 1968 (“the 1968 Act”), which it renames as the Court Martial Appeals Act 1968. Most of these amendments reflect other changes made by the Act, including (for example) the creation of a standing Court Martial, the requirement to pass a separate sentence for each offence, and the abolition of court-martial review, court-martial presidents and the post of Judge Advocate of Her Majesty’s Fleet. These changes enable the law on appeals from the Court Martial to be simplified and aligned more closely with that on appeals from the Crown Court.

818.For example, paragraph 10 inserts a new subsection (3) into section 12 of the 1968 Act which provides that an appellant whose conviction is quashed on appeal is to be treated as if he had been acquitted by the Court Martial, unless the appeal court orders a retrial under section 19. Section 18 currently prevents the retrial of an appellant whose conviction is quashed (unless the court orders a retrial); but the new section 12(3) makes section 18 redundant (because section 63 prevents the retrial of a person who has been acquitted by the Court Martial), and section 18 is therefore repealed by paragraph 19.

819.Paragraph 11 replaces section 13 of the 1968 Act, which enables the Courts-Martial Appeal Court—renamed by the Act as the Court Martial Appeal Court (“CMAC”)—to substitute a different sentence where the appellant was convicted on two or more charges and some, but not all, of the convictions are quashed. In its present form, section 13 reflects the fact that the court-martial will have passed a single sentence in respect of all the convictions. Under the Act, by contrast, the Court Martial will have passed a separate sentence for each conviction. Where the CMAC quashes some convictions but not all, the new section 13 accordingly allows the CMAC to substitute, in respect of any conviction that still stands, any sentence which the court thinks appropriate and the Court Martial could have passed. But this must not be done in such a way that the sentences for the remaining convictions, taken together, are more severe than those passed by the Court Martial (including those passed in respect of convictions that are now quashed). The effect of the new section 13 is similar to that of section 4 of the Criminal Appeal Act 1968 in relation to appeals from the Crown Court.

820.Paragraph 16 replaces section 16A of the 1968 Act, which sets out the powers available to the court on an appeal against sentence. Again the new section reflects the fact that the Court Martial will have passed a separate sentence for each offence of which the appellant was convicted.

821.Paragraph 17 amends section 17 of the 1968 Act so that, unless the appeal court otherwise directs, a sentence passed on appeal takes effect from the day on which the Court Martial passed sentence (rather than, as at present, the time when the new sentence would have taken effect if it had been passed at the trial).

822.Paragraph 21 amends section 20 of the 1968 Act, which makes provision for retrials ordered under section 19, so that the effect is broadly similar to that of section 8 of the Criminal Appeal Act 1968.

823.Paragraph 29 repeals section 26 of the 1968 Act, which allows an appellant to present his case in writing, in the prescribed form, instead of orally. There is no equivalent provision in the civilian system, and no form has been prescribed.

824.Paragraph 30 replaces section 27 of the 1968 Act, which provides that an appellant is not entitled to be present at the hearing of the appeal unless the court gives him leave, with a new section 27 which provides that (subject to certain exceptions) he is entitled to be present.

825.Paragraph 40 amends section 38 of the 1968 Act so that it is the Director of Service Prosecutions, rather than the Defence Council, who has the duty of defending any appeal.

826.Section 56 of the 1968 Act gives effect to Schedule 3 to that Act, which modifies the provisions of the Act for appeals from courts-martial convened to try prisoners of war. Paragraph 55 repeals Schedule 3, and paragraph 50 substitutes a new section 56 under which the Act applies to such appeals with such modifications as may be contained in the Royal Warrant governing prisoner of war courts-martial.

827.Paragraph 54 replaces Schedule 1 to the 1968 Act, which makes separate provision for each Service in relation to the giving of evidence at a retrial ordered under section 19, the sentence available on conviction at such a retrial, and the giving of credit for time spent in custody.

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