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Armed Forces Act 2006

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Section 272

SCHEDULE 8E+W+S+N.I.Amendment of the Courts-Martial (Appeals) Act 1968

This schedulenoteType=Explanatory Notes has no associated

1The Courts-Martial (Appeals) Act 1968 (c. 20) is amended as follows.E+W+S+N.I.

2For the heading to Part 1 substitute “ THE COURT MARTIAL APPEAL COURT ”.E+W+S+N.I.

3In section 1(1) (the court) for the words from the beginning to “air-force courts-martial,” substitute “ The Court Martial Appeal Court ”.E+W+S+N.I.

4In section 4 (sittings) omit subsection (2).E+W+S+N.I.

5In section 5 (constitution of court for particular sittings), in subsection (3)(a)(iii) at the end insert “ or that the defendant did the act or made the omission charged against him ”.E+W+S+N.I.

6For the heading to Part 2 substitute “ APPEALS FROM THE COURT MARTIAL ”.E+W+S+N.I.

7In section 8 (right of appeal against conviction or sentence)—E+W+S+N.I.

(a)in subsection (1)—

(i)for “court-martial” substitute “ the Court Martial ”;

(ii)in paragraph (b) at the end add “ , whether passed on conviction or in subsequent proceedings ”;

(b)omit subsections (1A) to (4).

8Omit section 10 (alternative procedure for appeal from court-martial abroad).E+W+S+N.I.

9In section 11(1) (consideration of application by Appeal Court) omit “the Judge Advocate of Her Majesty's Fleet or”.E+W+S+N.I.

10In section 12 (power to quash conviction as unsafe)—E+W+S+N.I.

(a)in subsection (1)(a) for “court-martial” substitute “ the Court Martial ”;

(b)after subsection (2) add—

(3)Where the Appeal Court quash a conviction, the appellant is to be treated as if he had been acquitted by the Court Martial; but this does not apply if an order under section 19 authorising the appellant to be retried is made.

11For section 13 (adjustment of sentence in case of conviction on two or more charges) substitute—E+W+S+N.I.

13Power to re-sentence when some but not all convictions successfully appealed

(1)This section applies where—

(a)on a single occasion a person is sentenced by the Court Martial in respect of two or more offences; and

(b)the Appeal Court allow an appeal against conviction in respect of some but not all of the offences.

(2)The Court may in respect of any offence of which the appellant remains convicted pass, in substitution for the sentence passed by the Court Martial, any sentence that—

(a)they think appropriate; and

(b)is a sentence that the Court Martial had power to pass.

(3)But the Court may not exercise their powers under subsection (2) in such a way that the appellant's sentences (taken together) for all the offences of which he remains convicted are more severe than the sentences (taken together) passed on him by the Court Martial on the occasion mentioned in subsection (1)(a).

(4)The reference in subsection (3) to the sentences passed by the Court Martial includes those passed by that court in respect of offences as respects which appeals against conviction have been allowed.

12(1)Section 14 (substitution of conviction on different charge) is amended as follows.E+W+S+N.I.

(2)In the sidenote, at the end add “ otherwise than after guilty plea ”.

(3)For subsection (1) substitute—

(1)This section applies where—

(a)an appellant has been convicted of an offence to which he did not plead guilty;

(b)the Court Martial could lawfully have found him guilty of some other offence; and

(c)it appears to the Appeal Court on an appeal against conviction that the Court Martial must have been satisfied of facts which prove him guilty of that other offence.

(4)In subsection (2)—

(a)for “court-martial” in both places substitute “ Court Martial ”;

(b)for the words from “such sentence as” to the end substitute any sentence that—

(a)they think appropriate;

(b)is a sentence that the Court Martial would have had power to pass in respect of that other offence; and

(c)is not more severe than the sentence passed by the Court Martial.

13In section 14A (substitution of conviction on different charge after guilty plea), in subsection (2) for the words from “court-martial” to the end substitute Court Martial, any sentence that— E+W+S+N.I.

(a)they think appropriate;

(b)is a sentence that the Court Martial would have had power to pass in respect of that other offence; and

(c)is not more severe than the sentence passed by the Court Martial.

14Omit section 15 (variation of conviction so as to attract different sentence).E+W+S+N.I.

15In section 16 (substitution of finding of insanity etc)—E+W+S+N.I.

(a)in subsection (1) after “are of” insert “ the ”;

(b)for subsections (2) to (4) substitute—

(1A)The Appeal Court shall, instead of allowing or dismissing the appeal, substitute for the finding appealed against—

(a)a finding of not guilty by reason of insanity; or

(b)findings that the appellant was unfit to stand trial and that he did the act or made the omission charged against him.

(2)Sections 169(2) to (5) and 170 of, and Schedule 4 to, the 2006 Act apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to the Court Martial in a case in which section 169 of that Act applies.

(3)Section 172 of that Act (meaning of “duly approved” etc) applies for the purposes of this section (and references there to the defendant are to be read as references to the appellant).;

(c)in subsection (5) for “a judicial officer” in both places substitute “ the Court Martial ”;

(d)omit subsection (6).

16For section 16A (powers on appeals against sentence) substitute—E+W+S+N.I.

16AAppeals against sentence

(1)Where, on a single occasion, the Court Martial passes two or more sentences on a person, an appeal or application for leave to appeal against any of those sentences is to be treated as an appeal or application in respect of both or all of them.

(2)On an appeal against sentence the Appeal Court may quash the sentence passed by the Court Martial and pass in substitution for it any sentence that—

(a)they think appropriate; and

(b)is a sentence that the Court Martial had power to pass in respect of the offence.

(3)But the Court may not exercise their powers under subsection (2) in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the Court Martial.

17In section 17 (sentences passed by the Appeal Court)—E+W+S+N.I.

(a)in the sidenote for “or 15” substitute “ , 14A or 16A ”;

(b)for subsection (1) substitute—

(1)Unless the Court otherwise direct, a sentence passed by the Appeal Court under section 13, 14, 14A or 16A takes effect from the beginning of the day on which the Court Martial passed sentence.;

(c)omit subsection (2).

18Omit section 17A (application of certain provisions of SDAs in relation to appeals by civilians).E+W+S+N.I.

19Omit section 18 (retrial generally excluded).E+W+S+N.I.

20In section 19 (power to authorise retrial in certain cases)—E+W+S+N.I.

(a)in subsection (1) for “court-martial” substitute “ the Court Martial ”;

(b)in subsection (2) for the words from “the restrictions” to the end substitute “ section 63 of the 2006 Act (service proceedings barring subsequent service proceedings). ”;

(c)in subsection (3)—

(i)for the words from the beginning to “other than” substitute “ An order under this section may authorise the appellant to be retried for ”;

(ii)in paragraph (a) for “original court-martial” substitute “ Court Martial ”;

(iii)in paragraph (b) for “at the original court-martial” substitute “ by the Court Martial ”;

(iv)in paragraph (c) for “court-martial” substitute “ Court Martial ”;

(d)in subsection (4) for the words from “but whether” to the end substitute “ if any such direction is made the Director of Service Prosecutions must bring the charge or charges so specified (which are to be regarded for the purposes of Part 5 of the 2006 Act as allocated for Court Martial trial). ”;

(e)after that subsection add—

(5)Section 125 of the 2006 Act (powers of DSP after charge) has effect in relation to a charge on which a person is to be retried under this section (whether or not a fresh charge) subject to such modifications as may be contained in Court Martial rules (within the meaning of that Act).

21In section 20 (implementation of authority for retrial etc)—E+W+S+N.I.

(a)for subsection (1) substitute—

(1)Where—

(a)an order under section 19 authorising the retrial of a person has been made, and

(b)the person has not been arraigned (in pursuance of the order) within three months beginning with the date of the order,

the person may not be arraigned unless the Appeal Court give leave.

(1A)A person who may not be arraigned without the leave of the Appeal Court may apply to the Court to set aside the order under section 19.

(1B)On an application under subsection (1) or (1A) the Appeal Court may—

(a)grant leave to arraign; or

(b)set aside the order under section 19.

(1C)But leave to arraign may be granted only if the Appeal Court are satisfied—

(a)that the prosecution has acted with all due expedition; and

(b)that there is a good and sufficient reason for a retrial in spite of the lapse of time since the order under section 19 was made.

(1D)Where an order under section 19 authorising the retrial of a person for an offence is set aside, the person is to be treated as if he had been acquitted by the Court Martial of the offence.

(1E)Where the Appeal Court authorise the retrial of a person they may—

(a)by order authorise the keeping of that person in service custody—

(i)for such period, ending not later than 8 days after the date the order is made, as the Court think appropriate; or

(ii)if the person is legally represented and consents, for such period, not exceeding 28 days, as the Court think appropriate; or

(b)require that person to comply with such requirements as seem to the Court to be necessary for a purpose mentioned in section 107(3) of the 2006 Act.

(1F)Where the person is in service custody the Appeal Court may under subsection (1E)(b) impose a requirement that must be complied with before the person may be released.

(1G)An order under subsection (1E)(a) is to be treated, for the purposes of Part 4 of the 2006 Act, as made under section 105(2) of that Act.

(1H)A requirement imposed under subsection (1E)(b) is to be treated, for the purposes of Part 4 of the 2006 Act, as imposed under section 107(3) of that Act (and, where appropriate, by virtue of section 107(3)(a) of that Act).;

(b)after subsection (2) insert—

(2A)In subsection (2) “relevant time” means—

(a)where arraignment takes place within the three months referred to in subsection (1)—

(i)if the defendant is convicted on his retrial, the end of 28 days beginning with the date of conviction;

(ii)otherwise, the time when the case is finally disposed of;

(b)where arraignment does not take place within those three months, the end of those three months.;

(c)in subsection (3)—

(i)for “a direction” substitute “ an order or direction ”;

(ii)after “that” insert “ order or ”;

(d)after that subsection insert—

(3A)In subsection (3) “relevant time” means—

(a)where arraignment takes place within the three months referred to in subsection (1), the time when the case is finally disposed of;

(b)otherwise, the end of those three months.;

(e)in subsection (4) for “Part VI of the Mental Health (Scotland) Act 1984” substitute “ the Mental Health (Care and Treatment) (Scotland) Act 2003 ”;

(f)omit subsection (5);

(g)in subsection (6) omit the words from “of this Act” to the end.

22In section 21 (appeal against finding of not guilty by reason of insanity)—E+W+S+N.I.

(a)in subsection (1)—

(i)for “court-martial” substitute “ the Court Martial ”;

(ii)omit the words from “; and in relation to” to the end;

(b)after that subsection insert—

(1A)On an appeal under this section the Appeal Court—

(a)shall (subject to subsection (2)) allow the appeal if they think the finding is unsafe; and

(b)shall dismiss the appeal in any other case.

(1B)Sections 19 and 20 and paragraph 2 of Schedule 1 apply in relation to appeals under this section as they apply in relation to appeals against conviction (and references there to conviction, and to related expressions, are to be read accordingly).;

(c)in subsection (2) before “opinion” insert “ the ”.

23In section 22 (consequences where appeal under section 21 allowed)—E+W+S+N.I.

(a)in subsection (2)—

(i)before “opinion” insert “ the ”;

(ii)for “court-martial” in both places substitute “ Court Martial ”;

(b)in subsection (3)—

(i)for “court-martial which tried him” substitute “ Court Martial ”;

(ii)for the words “section 13, 14 or 15 of this Act” substitute “ a provision mentioned in section 17(1) ”;

(c)for subsection (4) substitute—

(3A)If 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 the opinion mentioned in section 16(1)(b) (court below ought to have found defendant unfit to stand trial etc)—

(a)the Court shall substitute for the finding of the Court Martial findings that the appellant was unfit to stand trial and that he did the act or made the omission charged against him; and

(b)section 16(2) to (5) apply as they apply for the purposes of section 16.

(3B)Section 172 of the 2006 Act (meaning of “duly approved” etc) applies for the purposes of subsection (3A) (and references there to the defendant are to be read as references to the appellant).

(4)If the case is not within subsection (2) or (3A), the Appeal Court must quash the finding appealed against.

(5)Where the Appeal Court quash a finding of not guilty by reason of insanity, the appellant is to be treated as if he had been acquitted by the Court Martial; but this does not apply if an order under section 19 authorising the appellant to be retried is made.

24Omit section 23 (substitution of finding of unfitness to stand trial etc).E+W+S+N.I.

25In section 24 (appeal against finding of unfitness)—E+W+S+N.I.

(a)in subsection (1) for “a court-martial” substitute “ the Court Martial ”;

(b)omit subsection (2).

26(1)Section 25 (disposal of appeals under section 24) is amended as follows.E+W+S+N.I.

(2)After subsection (1) insert—

(1A)The Appeal Court—

(a)shall allow an appeal against a finding if they think the finding is unsafe; and

(b)shall dismiss such an appeal in any other case.

(1B)If the Appeal Court allow an appeal against a finding they shall quash the finding.

(3)In subsection (2)—

(a)for “allow an appeal against” substitute “ quash ”;

(b)in paragraph (a) for “appellant may be tried accordingly” substitute “ Court may make an order authorising the appellant to be tried ”;

(c)for paragraph (b) substitute—

(b)if such an order is made, section 20 and paragraph 2 of Schedule 1 apply in relation to the case as they apply in relation to a case in which an order under section 19 is made (and references there to conviction, and to related expressions, are to be read accordingly).

(4)For subsection (3) substitute—

(3)Where the Appeal Court quash a finding that the defendant did the act or made the omission charged, the appellant is to be treated as if he had been acquitted by the Court Martial; but this does not apply if an order under subsection (2)(a) authorising the appellant to be tried is made.

27For section 25A (right of appeal against hospital order etc) substitute—E+W+S+N.I.

25ARight of appeal against hospital order etc

(1)A person may, with the leave of the Appeal Court, appeal against the making by the Court Martial of an order within subsection (2) in respect of him.

(2)The orders are—

(a)a hospital order;

(b)an interim hospital order;

(c)a service supervision order (as defined by section 170 of the 2006 Act).

28In section 25B (disposal of appeals under section 25A)—E+W+S+N.I.

(a)in subsections (1) and (2) for “court below” in each place substitute “ Court Martial ”;

(b)in subsection (2) omit “under the Mental Health Act 1983”;

(c)for subsections (3) to (5) substitute—

(3)Section 16(5) applies in relation to interim hospital orders made by virtue of this section as it applies in relation to such orders made by virtue of section 16.

(4)The fact that an appeal is pending against a service supervision order (as defined by section 170 of the 2006 Act) shall not affect any power conferred on any other court to revoke or amend the order.

29Omit section 26 (presentation of appellant's case).E+W+S+N.I.

30For section 27 (presence of appellant at hearing) substitute—E+W+S+N.I.

27Right of appellant to be present

(1)An appellant (whether or not in custody) is entitled to be present on the hearing of his appeal.

(2)Subsection (1) does not apply to an appellant in custody—

(a)where his appeal is on a ground involving only a question of law,

(b)on an application by him for leave to appeal, or

(c)on any proceedings preliminary or incidental to an appeal,

unless the Appeal Court give him leave to be present.

31In section 28 (evidence)—E+W+S+N.I.

(a)in subsection (1)—

(i)in paragraph (b), for “at the trial” in the first place where it occurs substitute “ in the proceedings from which the appeal lies ” and in the second place where it occurs substitute “ in those proceedings ”;

(ii)in paragraph (c) for “at the trial” substitute “ in the proceedings from which the appeal lies ”;

(b)in subsection (2)—

(i)in paragraph (c) for “at the trial” substitute “ in the proceedings from which the appeal lies ”;

(ii)in paragraph (d) for “at the trial” substitute “ in those proceedings ”.

32In section 29 (power to call for report by member of trial court)—E+W+S+N.I.

(a)in the sidenote for “trial court” substitute “ the Court Martial ”;

(b)in subsection (1) for the words from “court-martial” to “trial,” substitute “ court in the proceedings from which the appeal lies ”;

(c)omit subsection (2).

33In section 31 (costs of successful appeal) in subsection (2), for the words from “case” to the end substitute “ proceedings (in the Appeal Court and below). ”E+W+S+N.I.

34In section 32 (costs against appellant) in subsection (2) for paragraph (b) substitute—E+W+S+N.I.

(b)if the appellant or applicant is a member of the regular or reserve forces (as defined by section 374 of the 2006 Act), by making deductions from pay due to him,.

35In section 33 (witnesses' expenses) after subsection (1) insert—E+W+S+N.I.

(1A)Subsection (1) applies in relation to a registered medical practitioner who makes a written report to the Appeal Court in pursuance of a request made by the court as it applies in relation to a person who is called to give evidence at the instance of the court.

36In section 34 (reference of cases by service authorities)—E+W+S+N.I.

(a)in subsection (1)—

(i)for “court-martial” in the first place where it occurs substitute “ the Court Martial ” and in the other three places where it occurs substitute “ Court Martial ”;

(ii)in paragraph (a) omit “the Judge Advocate of Her Majesty's Fleet or”;

(iii)for “the Judge Advocate of Her Majesty's Fleet, the Judge Advocate General” substitute “ the Judge Advocate General ”;

(b)omit subsection (3);

(c)in subsection (4) for “a court-martial” substitute “ the Court Martial ”.

37In section 36 (powers exercisable by single judge) in subsection (1)—E+W+S+N.I.

(a)omit “under this Part of this Act”;

(b)omit paragraph (a);

(c)after paragraph (c) insert—

(ca)to make orders, or impose requirements, under section 20(1E);;

(d)in paragraph (g) omit the words from “and the power” to the end;

(e)after paragraph (h) insert—

(i)to give a direction under section 3(4) of the Sexual Offences (Amendment) Act 1992 (direction disapplying provision as to anonymity of victim);

(j)to give leave under section 14(4B) of the Criminal Appeal Act 1995 (leave to add grounds of appeal on reference by Criminal Cases Review Commission);.

38In section 36C (appeals against procedural directions) in subsection (5)(b)—E+W+S+N.I.

(a)for “Defence Council” substitute “ Director of Service Prosecutions ”;

(b)for “Defence Council's” substitute “ Director of Service Prosecutions' ”.

39For section 37 (provision of documents relating to trial) substitute—E+W+S+N.I.

37Provision of record of proceedings of the Court Martial

In the case of every appeal or application for leave to appeal to the Appeal Court, the Judge Advocate General must provide the registrar, in accordance with rules of court, with a record of the proceedings of the Court Martial.

40In section 38 (defence of appeals) for “Defence Council” substitute “ Director of Service Prosecutions ”.E+W+S+N.I.

41For the heading to Part 3 substitute “ APPEAL FROM COURT MARTIAL APPEAL COURT TO SUPREME COURT ”.E+W+S+N.I.

42In section 39 (right of appeal to Supreme Court) in subsection (1) for “Defence Council” substitute “ Director of Service Prosecutions ”.E+W+S+N.I.

43In section 43 (detention of accused)—E+W+S+N.I.

(a)for subsection (1) substitute—

(1)The Appeal Court may make an order under this section where—

(a)but for the decision of the Appeal Court, the accused would be liable to be detained; and

(b)immediately after that decision, the Director of Service Prosecutions is granted leave to appeal or gives notice that he intends to apply for leave to appeal.

(1A)An order under this section is—

(a)an order providing for the detention of the accused so long as any appeal to the Supreme Court is pending; or

(b)an order directing that, so long as any appeal to the Supreme Court is pending, the accused is not to be released except on bail.

(1B)Where an order within subsection (1A)(b) is made, the Appeal Court may grant the accused bail pending the appeal.;

(b)in subsection (4) for “Mental Health (Scotland) Act 1984” substitute “ Mental Health (Care and Treatment) (Scotland) Act 2003 ”.

44Omit section 46 (restitution of property).E+W+S+N.I.

45In section 47 (costs)—E+W+S+N.I.

(a)in subsection (1) for “Secretary of State” in the first place where it occurs substitute “ Director of Service Prosecutions ”;

(b)in subsection (3) for the words from “case up to” to the end substitute “ proceedings (in the Supreme Court and below). ”

46(1)Section 48A (appeals on behalf of deceased persons) is amended as follows.E+W+S+N.I.

(2)In subsection (1)(b) after “above” insert “ or by a reference by the Criminal Cases Review Commission ”.

(3)In subsection (3)(c) for “Court of Appeal” substitute “ Appeal Court ”.

(4)In subsection (4) at the beginning insert “ Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission, ”.

47In section 50 (duties of registrar with respect to appeals etc)—E+W+S+N.I.

(a)in subsection (1) for “court-martial by which the appellant or applicant was tried” substitute “ Court Martial ”;

(b)in subsection (2) for “court-martial” substitute “ the Court Martial ”.

48In section 52 (removal of prisoners) for paragraphs (a) to (c) substitute—E+W+S+N.I.

(a)section 300 of the 2006 Act;.

49In section 54 (saving for prerogative) in subsection (1) for “court-martial” substitute “ the Court Martial ”.E+W+S+N.I.

50For section 56 substitute—E+W+S+N.I.

56Modifications for protected prisoners of war

As respects a protected prisoner of war (as defined by section 7(1) of the Geneva Conventions Act 1957), this Act applies in relation to a prisoner of war court-martial constituted under a Royal Warrant as it applies in relation to the Court Martial, subject to such modifications as may be contained in the Royal Warrant.

51(1)Section 57 (interpretation) is amended as follows.E+W+S+N.I.

(2)In subsection (1)—

(a)after “unless the context otherwise requires,—” insert—

the 2006 Act” means the Armed Forces Act 2006;;

(b)omit the definitions of—

  • “the Air Force Act”;

  • “air force court-martial”;

  • “the Army Act”;

  • “army court-martial”;

  • “court-martial”;

  • “duly approved”;

  • “the Judge Advocate General”;

  • “judicial officer”;

  • “the Naval Discipline Act”;

  • “naval court-martial”;

  • “restriction order”;

  • “supervision order”;

(c)in the definition of “appellant” omit “has been tried by court-martial and”;

(d)after the definition of “court-martial” (omitted by virtue of sub-paragraph (b)) insert—

Director of Service Prosecutions” has the meaning given by section 374 of the 2006 Act;.

(3)Omit subsections (2) to (2B).

(4)In subsection (3) for the words from “the accused in the court-martial” to the end substitute “ the appellant in the Appeal Court. ”

52Omit section 58 (consequential amendments).E+W+S+N.I.

53In section 61 (short title and commencement), in subsection (1) for “Courts-Martial (Appeals) Act 1968” substitute “ Court Martial Appeals Act 1968 ”.E+W+S+N.I.

54For Schedule 1 (provisions as to retrial) substitute—E+W+S+N.I.

Section 20

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

1This Schedule applies where an order under section 19 is made authorising the retrial of a person.

2Evidence given at the retrial must be given orally if it was given orally at the original trial, unless—

(a)all parties to the retrial agree otherwise;

(b)section 116 of the Criminal Justice Act 2003 applies (admissibility of hearsay evidence where a witness is unavailable); or

(c)the witness is unavailable to give evidence, otherwise than as mentioned in subsection (2) of that section, and section 114(1)(d) of that Act applies (admission of hearsay evidence under residual discretion).

3If the person is convicted on the retrial, the Court Martial may not pass a sentence that is (or sentences that, taken together, are) more severe than the sentence (or the sentences, taken together) passed at the original trial.

4In sections 246 and 247 of the 2006 Act (crediting of time in service custody) as they apply in relation to the retrial, references to the offender being kept in service custody include references to his being kept in custody (whether service or otherwise) in pursuance of a sentence passed at the original trial.

55Omit Schedule 3 (modifications in relation to prisoners of war).E+W+S+N.I.

56Omit Schedule 4 (consequential amendments).E+W+S+N.I.

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