The Court Martial Appeal Court (Bail) Order 2009

Statutory Instruments

2009 No. 992

Defence

The Court Martial Appeal Court (Bail) Order 2009

Made

14th April 2009

Laid before Parliament

20th April 2009

Coming into force

31st October 2009

The Secretary of State makes the following Order in exercise of the powers conferred upon him by section 30 of the Armed Forces Act 2001(1):

Citation and commencement

1.  This Order may be cited as the Court Martial Appeal Court (Bail) Order 2009 and shall come into force on 31st October 2009.

Interpretation

2.  In this Order—

“the 1955 Acts” means the Army Act 1955(2) and the Air Force Act 1955(3);

“the 1957 Act” means the Naval Discipline Act 1957(4);

“the 1994 Act” means the Criminal Justice and Public Order Act 1994(5);

“the 2006 Act” means the Armed Forces Act 2006(6);

“appeal” means an appeal under section 8(1) of the Court Martial Appeals Act 1968(7), and “appellant” has a corresponding meaning;

“bail” means release from custody subject to conditions, and “released on bail” and other cognate expressions shall be construed accordingly;

“child” means a person under the age of fourteen;

“Court” means the Court Martial Appeal Court;

“court-martial” means a court-martial constituted under either of the 1955 Acts or the 1957 Act;

“custodian” means the governor, keeper or commandant of the prison or other place of detention in which the appellant is detained;

“Director of Service Prosecutions” means the person appointed under section 364 of the 2006 Act;

“registrar” means the registrar of the Court appointed under section 7(1) of the Court Martial Appeals Act 1968;

“surrender to custody” means, in relation to a person released on bail, surrendering himself into the custody of the Court or a person (according to the requirements of the grant of bail) at the time and place for the time being appointed for him to do so;

“vary” in relation to bail, means imposing further conditions after bail is granted, or varying or rescinding conditions; and

“young person” means (except in article 4) a person who has attained the age of fourteen but is under the age of seventeen.

Grant of bail by the Court

3.—(1) Subject to article 4, the Court may, if they think fit—

(a) grant an appellant bail pending the determination of his appeal;

(b) revoke bail granted to an appellant in the exercise of the power conferred by sub-paragraph (a); or

(c) vary conditions of bail granted to an appellant in the exercise of the power conferred by sub-paragraph (a).

(2) The powers conferred by paragraph (1) may be exercised—

(a) on the application of the appellant or, in the case of the powers conferred by paragraph (1)(b) and (c), of the Director of Service Prosecutions or a surety; or

(b) on a reference to the Court by the registrar.

(3) The powers conferred by paragraph (1) may, subject to paragraph (4), be exercised by any judge of the Court.

(4) If under paragraph (3) a single judge refuses an application on the part of an appellant to exercise in his favour any of the powers under paragraph (1), the appellant shall be entitled to have the application determined by the Court as duly constituted for the purpose under section 5 of the Court Martial Appeals Act 1968(8).

No bail for defendants convicted of certain offences after previous conviction of such offences

4.—(1) An appellant who in any proceedings has been convicted of an offence to which this article applies in circumstances to which it applies shall be granted bail under article 3 only if the Court considering the grant of bail is satisfied that there are exceptional circumstances which justify it.

(2) This article applies, subject to paragraph (3)—

(a) to an offence under section 70 of either of the 1955 Acts or section 42 of the 1957 Act for which the corresponding civil offence, within the meaning of those Acts, is an offence specified in section 25(2) of the 1994 Act(9); and

(b) to an offence under section 42 of the 2006 Act for which the corresponding offence under the law of England and Wales, within the meaning of that section, is an offence specified in section 25(2) of the 1994 Act.

(3) This article applies to an appellant convicted of any such offence only if he has been previously convicted—

(a) by a court-martial or the Court Martial of any such offence, or

(b) by or before a court in any part of the United Kingdom of an offence specified in section 25(2) of the 1994 Act or of culpable homicide, and

in the case of a relevant previous conviction, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments.

(4) In this article—

(a) “conviction” includes—

(i) a finding that a person is not guilty by reason of insanity,

(ii) a finding under section 4A(3) of the Criminal Procedure (Insanity) Act 1964(10), section 115B(2) of the 1955 Acts, section 62B(2) of the 1957 Act(11) or section 167(2) of the 2006 Act (cases of unfitness to plead) that a person did the act or made the omission charged against him, and

(iii) a conviction of an offence for which an order is made discharging the offender absolutely or conditionally,

and “convicted” shall be construed accordingly;

(b) “relevant enactments” has the same meaning as in section 25(5) of the 1994 Act;

(c) “relevant previous conviction” means a previous conviction for—

(i) manslaughter;

(ii) an offence under section 70 of either of the 1955 Acts or section 42 of the 1957 Act for which the corresponding civil offence, within the meaning of those Acts, is an offence of manslaughter;

(iii) an offence under section 42 of the 2006 Act for which the corresponding offence under the law of England and Wales, within the meaning of that section, is an offence of manslaughter; or

(iv) culpable homicide; and

(d) “young person” means a person who has attained the age of fourteen but is under the age of eighteen.

Effect of bail on term of imprisonment or detention

5.—(1) The time during which an appellant is released on bail under this Order shall not count as time served by him as part of any relevant sentence to which he is subject for the time being.

(2) In paragraph (1) “relevant sentence” means a sentence of imprisonment, of service detention within the meaning of the 2006 Act or of detention under either of the 1955 Acts or under the 1957 Act.

Applications

6.—(1) This article applies where a person referred to in article 3(2)(a) wants to make an application to the court under article 3(2).

(2) The person shall serve an application in the form set out as form 1a in the Schedule on the registrar and on each other person referred to in article 3(2)(a).

(3) The Court shall not decide the application without giving each other person referred to in article 3(2)(a) an opportunity to make representations, including representations about any condition or surety proposed by the applicant.

Conditions of bail – general provisions

7.—(1) A person granted bail under this Order shall be under a duty to surrender to custody, and that duty is enforceable in accordance with article 10.

(2) No recognizance for his surrender to custody shall be taken from him.

(3) Except as provided by this article—

(a) no security for his surrender to custody shall be taken from him;

(b) he shall not be required to provide a surety or sureties for his surrender to custody; and

(c) no other requirement shall be imposed on him as a condition of bail.

(4) He may be required, before release on bail, to—

(a) provide a surety or sureties to secure his surrender to custody;

(b) give (or have given on his behalf) security for his surrender to custody.

(5) He may be required to comply, before release on bail or later, with such requirements as appear to the Court to be necessary—

(a) to secure that he surrenders to custody at an appointed time and place;

(b) to secure that he does not commit an offence while on bail;

(c) to secure that he does not obstruct the course of justice whether in relation to himself or any other person;

(d) for his own protection or, if he is a child or young person, for his own welfare or in his own interests;

(e) to secure that he makes himself available for the purpose of enabling inquiries or a report to be made to assist a court in dealing with him;

(f) to secure that before the time appointed for him to surrender to custody, he attends an interview with a legal adviser.

(6) If a parent or guardian of a child or young person consents to be surety for the child or young person for the purposes of this paragraph, the parent or guardian may be required to secure that the child or young person complies with any requirement imposed on him by virtue of paragraph (5) but—

(a) no requirement shall be imposed on the parent or the guardian of a young person by virtue of this paragraph where it appears that the young person will attain the age of seventeen before the time to be appointed for him to surrender to custody; and

(b) the parent or guardian shall not be required to secure compliance with any requirement to which his consent does not extend and shall not, in respect of those requirements to which his consent does extend, be bound in a greater sum than £50.

Bail - conditions and directions

8.—(1) This article applies where the Court grants the appellant bail subject to a condition that shall be met before the appellant is released.

(2) The court may direct how the condition shall be met.

(3) The registrar shall serve a certificate in the form set out as form 1b in the Schedule recording the condition and any such direction on—

(a) the appellant;

(b) the custodian; and

(c) any other person directly affected by any such direction.

(4) A person directly affected by any such direction need not comply with it until the registrar serves that person with the certificate.

(5) Unless the Court otherwise directs, if the condition or any such direction requires someone to enter into a recognizance, the recognizance shall be—

(a) in the form set out as form 1c in the Schedule and signed before—

(i) the registrar;

(ii) the custodian; or

(iii) someone acting with the authority of the registrar or custodian;

(b) copied immediately to the person who enters into it; and

(c) served immediately by the registrar on the custodian, or by the custodian on the registrar, as appropriate.

(6) Unless the Court otherwise directs, if the condition or any such direction requires someone to make a payment, surrender a document or take some other step—

(a) that payment, document or step shall be made, surrendered or taken to or before—

(i) the registrar;

(ii) the custodian; or

(iii) someone acting with the authority of the registrar or custodian;

(b) the registrar or the custodian, as appropriate, shall serve immediately on the other a statement that the payment, document or step has been made, surrendered or taken, as appropriate.

(7) The custodian shall release the appellant where it appears that any condition ordered by the Court has been met.

(8) Any record required by article 9 shall be made by including in a file relating to the case in question—

(a) any certificate served under paragraph (3); and

(b) a copy of any notice, required to be given under rules made under section 49 of the Court Martial Appeals Act 1968, of the determination by the Court of the application under article 3.

Conditions of bail - supplementary provisions

9.—(1) Where the Court—

(a) grants bail under this Order,

(b) appoints a time or place or a different time or place for a person granted bail under this Order to surrender to custody, or

(c) varies any conditions of bail or imposes conditions in respect of bail under this Order,

the Court shall make a record of the decision in writing containing the particulars prescribed by paragraph (2) and, if requested to do so by the person in relation to whom the decision was taken, shall cause him to be given a copy of the record of the decision as soon as practicable after the record is made.

(2) The record required by paragraph (1) shall be made by way of an entry in a file relating to the case in question and the record shall include the following particulars, namely—

(a) the effect of the decision;

(b) a statement of any condition imposed in respect of bail, indicating whether it is to be complied with before or after release on bail; and

(c) where conditions of bail are varied, a statement of the conditions as varied.

(3) Where a person has given security in pursuance of article 7(4)(b), and the Court is satisfied that he failed to surrender to custody then, unless it appears that he had reasonable cause for his failure, the Court may order the forfeiture of the security.

(4) If the Court orders the forfeiture of a security under paragraph (3), the Court may declare that the forfeiture extends to such amount less than the full value of the security as the Court thinks fit to order.

(5) An order under paragraph (3) shall, unless previously revoked, take effect at the end of 21 days beginning with the day on which it is made.

(6) Where the Court has ordered the forfeiture of a security under paragraph (3), the Court may, if satisfied on an application made by or on behalf of the person who gave it that he did after all have reasonable cause for his failure to surrender to custody, by order remit the forfeiture or declare that it extends to such amount less than the full value of the security as the Court thinks fit to order.

(7) An application under paragraph (6) may be made before or after the order for forfeiture has taken effect, but shall not be entertained unless the Court is satisfied that the Director of Service Prosecutions was given reasonable notice of the applicant’s intention to make it.

(8) A security which has been ordered to be forfeited by the Court under paragraph (3) shall, to the extent of the forfeiture—

(a) if it consists of money, be accounted for and paid in the same manner as a fine imposed by the Court Martial would be;

(b) if it does not consist of money, be enforced by such court as may be specified in the order.

(9) Where an order is made under paragraph (6) after the order for forfeiture of the security in question has taken effect, any money which would have fallen to be repaid or paid over to the person who gave the security if the order under paragraph (6) has been made before the order for forfeiture took effect shall be repaid or paid over to him.

Offence of absconding by persons on bail

10.—(1) If a person who has been granted bail under this Order fails without reasonable cause to surrender to custody he shall be guilty of an offence.

(2) If a person who—

(a) has been granted bail under this Order, and

(b) has failed with reasonable cause to surrender to custody,

fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable he shall be guilty of an offence.

(3) In proceedings for an offence under paragraph (1) or (2) the defendant is to be treated as having had reasonable cause for failure unless sufficient evidence is adduced to raise an issue as to whether he had reasonable cause.

(4) A failure to give to a person granted bail under this Order a copy of the record of the decision shall not constitute a reasonable cause for that person’s failure to surrender to custody.

(5) An offence under paragraph (1) or (2) shall be triable summarily by a civil court in England or Wales (as well as being triable by the Court Martial).

(6) Where a magistrates’ court convicts a person of an offence under paragraph (1) or (2) the court may, if it thinks—

(a) that the circumstances of the offence are such that greater punishment should be inflicted for that offence than the court has power to inflict, or

(b) in a case where it commits that person for trial to the Crown Court for another offence, that it would be appropriate for him to be dealt with for the offence under paragraph (1) or (2) by the court before which he is tried for the other offence,

commit him in custody or on bail to the Crown Court for sentence.

(7) A person who is convicted summarily of an offence under paragraph (1) or (2) and is not committed to the Crown Court for sentence shall be liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 5 on the standard scale or to both, and a person who is so committed for sentence shall be liable to imprisonment for a term not exceeding 12 months or to a fine or to both.

(8) A person who is convicted of an offence under paragraph (1) or (2) by the Court Martial shall be liable to any punishment mentioned in the Table in section 164 of the 2006 Act but any sentence of imprisonment imposed in respect of the offence shall not exceed 12 months.

(9) In any proceedings for an offence under paragraph (1) or (2) a document purporting to be a copy of the part of the record which relates to the time and place appointed for the person specified in the record to surrender to custody and to be duly certified to be a true copy of that part of the record shall be evidence of the time and place appointed for that person to surrender to custody.

(10) For the purposes of paragraph (9)—

(a) “the record” means the record of the decision of the Court made in pursuance of article 9(1);

(b) the copy of the record is duly certified if it is certified by the registrar or such other person as may be authorised by him to act for the purpose.

Liability to arrest for absconding or breaking conditions of bail

11.—(1) If a person who has been granted bail under this Order and is under a duty to surrender to custody fails to do so at the time appointed for him to do so, the Court may issue a warrant for the arrest of the person.

(2) If a person who has been granted bail under this Order surrenders to custody at the time appointed for him to do so but then absents himself without leave before the hearing of any proceedings has begun or resumed in respect of that person, the Court may issue a warrant for the arrest of the person; but no warrant shall be issued under this paragraph where that person is absent in accordance with leave given to him by or on behalf of the Court.

(3) The Court may issue a warrant under paragraph (1) or (2) to a constable, or where the person to be arrested is subject to service law or a civilian subject to service discipline, a service policeman.

(4) A person who has been granted bail under this Order and is under a duty to surrender into the custody of the Court or any person may be arrested without warrant under paragraph (1) or (2) by a constable or, where the person is subject to service law or is a civilian subject to service discipline, by a service policeman—

(a) if the constable or service policeman has reasonable grounds for believing that that person is not likely to surrender to custody;

(b) if the constable or service policeman has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or

(c) in a case where that person was granted bail with one or more surety or sureties, if a surety notifies a constable or service policeman in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety.

(5) A person arrested in pursuance of paragraph (4) shall be brought as soon as practicable before the Court.

(6) The Court may, if of the opinion that that person—

(a) is not likely to surrender to custody, or

(b) has broken or is likely to break any condition of his bail,

commit him to custody or alternatively, grant him bail subject to the same or different conditions, but if not of that opinion shall grant him bail subject to the same conditions (if any) as were originally imposed.

(7) In this article—

(a) “constable” includes any person (whether within or outside the United Kingdom) having powers corresponding with those of a constable;

(b) “civilian subject to service discipline” “service policeman” and “subject to service law” have the same meaning as in section 374 of the 2006 Act.

Bail with sureties

12.—(1) This article applies where a person is granted bail under this Order on condition that he provides one or more surety or sureties for the purpose of securing that he surrenders to custody.

(2) In considering the suitability for that purpose of a proposed surety, regard may be had (amongst other things) to—

(a) the surety’s financial resources;

(b) his character and any previous convictions of his; and

(c) his proximity (whether in point of kinship, place of residence or otherwise) to the person for whom he is to be surety.

(3) Where the Court grants a person bail under this Order on such a condition but is unable to release him because no surety or no suitable surety is available, the Court shall fix the amount in which the surety is to be bound and paragraphs (4) and (5) shall apply for the purpose of enabling the recognizance of the surety to be entered into subsequently.

(4) Where this paragraph applies the recognizance of the surety may be entered into before such persons or descriptions of persons as the Court may by order specify or, if the Court makes no such order, before the registrar.

(5) Where a surety seeks to enter into his recognizance before any person in accordance with paragraph (4) but that person declines to take his recognizance because he is not satisfied of the surety’s suitability, the surety may apply to the Court for the Court to take his recognizance and the Court shall, if satisfied of his suitability, take his recognizance.

(6) Where, in pursuance of paragraph (4), a recognizance is entered into otherwise than before the Court, the same consequences shall follow as if it had been entered into before the Court.

Forfeiture of a recognizance given as a condition of bail

13.—(1) This article applies where—

(a) the Court grants bail under article 3; and

(b) the bail is subject to a condition that the appellant provides a surety to guarantee that he will surrender to custody as required; and

(c) the appellant does not surrender to custody as required.

(2) The registrar shall serve on the surety and the Director of Service Prosecutions notice of a hearing at which the Court may order the forfeiture of the recognizance given by the surety.

(3) The Court shall not forfeit a surety’s recognizance—

(a) less than 7 days after the date on which the registrar serves notice under paragraph (2); and

(b) without giving the surety an opportunity to make representations at the hearing.

Offence of agreeing to indemnify sureties

14.—(1) If a person agrees with another to indemnify that other against any liability which that other may incur as a surety under this Order, he and that other person shall be guilty of an offence.

(2) An offence under paragraph (1) is committed whether the agreement is made before or after the person to be indemnified becomes a surety and whether or not he becomes a surety and whether the agreement contemplates compensation in money or in money’s worth.

(3) An offence under paragraph (1) shall be triable by a civil court in England or Wales (as well as being triable by the Court Martial).

(4) Where a magistrates’ court convicts a person of an offence under paragraph (1) the court may, if it thinks—

(a) that the circumstances of the offence are such that greater punishment should be inflicted for that offence than the court has power to inflict, or

(b) in a case where it commits that person for trial to the Crown Court for another offence, that it would be appropriate for him to be dealt with for the offence under paragraph (1) by the court before which he is tried for the other offence,

commit him in custody or on bail to the Crown Court for sentence.

(5) A person guilty of an offence under paragraph (1) shall be liable—

(a) on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 5 on the standard scale or to both;

(b) on conviction on indictment or if sentenced by the Crown Court on committal for sentence under paragraph (4), to imprisonment for a term not exceeding 12 months or a fine or to both; or

(c) on conviction by the Court Martial to any punishment mentioned in the Table in section 164 of the 2006 Act but any sentence of imprisonment imposed in respect of the offence must not exceed 12 months.

(6) No proceedings for an offence under paragraph (1) shall be instituted before a civil court except by, or with the consent of, the Director of Public Prosecutions.

Kevan Jones

Parliamentary Under Secretary of State

Ministry of Defence

14th April 2009

Article 6(2), 8(3) and 8(5)

SCHEDULE FORMS

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes provision for the Court Martial Appeal Court (“the Court”) to grant conditional release from custody pending an appeal to the Court.

Article 3 gives the Court the power to grant or revoke bail pending appeal, and to vary the conditions of bail. It also provides that the powers of the Court to do so may be exercised by a single judge of the Court. However, in the event that a single judge refuses an application on the part of an appellant under article 3, it provides for the appellant to be entitled to have the application determined by the full Court.

Article 4 provides that bail cannot be granted, save in exceptional circumstances, to appellants convicted of any of the offences listed in section 25(2) of the Criminal Justice and Public Order Act 1994 (c. 33) or an offence under Armed Forces legislation corresponding to such an offence where the appellant has been previously convicted of such an offence.

Article 5 provides that any time spent on release on bail does not count as part of the term of imprisonment or detention.

Article 6 sets out the procedure for making an application to the Court about bail pending appeal.

Article 7 deals with the procedure for imposing conditions, such as the entering of a recognizance by a surety, which are required to be met before an appellant is released on bail.

Article 8 deals with the requirements which may be imposed by the Court as conditions of bail and allows the Court to impose such conditions as appear to be necessary to secure the person’s surrender and good behaviour when released.

Article 9 requires the making of records of certain of the Court’s decisions relating to bail and the power to order the forfeiture of security where a person has failed to surrender to custody.

Article 10 provides for two offences, namely the offence of failing without reasonable cause to surrender to custody and the offence of failing to surrender as soon as reasonably practical after having failed to surrender because of reasonable cause.

Article 11 gives the Court the power to direct the arrest of a person who has failed to surrender to custody or who has absconded following his surrender. The article also allows a constable or service policeman to arrest a person in the absence of such a direction in certain specified circumstances.

Article 12 applies where the grant of bail is conditional on the provision of sureties to secure the person’s surrender to custody. It sets out the factors which may be considered by the Court in deciding on the suitability of a surety, together with the procedure for the surety to enter recognizances.

Article 13 sets out the procedure for the Court to order forfeiture of a recognizance in the event of the appellant failing to surrender to custody.

Article 14 creates the offence of agreeing to indemnify sureties.

(1)

2001 c. 19; section 30 was amended by the Armed Forces Act 2006 (c.52), Schedule 16, paragraph 195.

(2)

1955 c. 18.

(3)

1955 c. 19.

(4)

1957 c. 53.

(5)

1994 c. 33.

(6)

2006 c. 52

(7)

1968 c. 20.

(8)

Section 5 was substituted by the Supreme Court Act 1981 (c. 54), section 145(4).

(9)

Section 25(2) was amended by the Sexual Offences Act 2003 (c. 42), section 139 and Schedule 6, paragraph 32(1) and (2).

(10)

1964 c. 84; section 4A was inserted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991(c.25), section 2.

(11)

Section 115B of the 1955 Acts and section 62B of the 1957 Act were inserted by the Domestic Violence, Crime and Victims Act 2004 (c. 28), section 26 and Schedule 3, paragraph 1.