Courts-Martial (Appeals) Act 1968

1968 CHAPTER 20

An Act to consolidate the Courts-Martial (Appeals) Act 1951 and the enactments amending it, including so much of the Administration of Justice Act 1960 as provides an appeal from the Courts-Martial Appeal Court to the House of Lords.

[8th May 1968]

Modifications etc. (not altering text)

C1 Act: Power to amend conferred (prosp.) by 2001 c. 19, ss. 30(4)(e), 39(2)

C2 Words of enactment omitted under authority of Statute Law Revision Act 1948 (c. 62), s. 3

C3 Act amended (women's services) by Armed Forces Act 1981 (c. 55, SIF 7:1), s. 20, Sch. 3 Pt. I para. 1

C4 Act: power to amend conferred (25.8.2006) by Armed Forces Act 2001 (c. 19), ss. 30(4)(e), 39(2); S.I. 2006/2309, art. 2

C5 Act modified (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), ss. 268(5), 383(2) (with s. 271(1)); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

C6 Act modified (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), ss. 231(2), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

C7 Act modified (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), ss. 235(1), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

C8 Act power to modify or exclude conferred (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), ss. 165(7), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

C9 Act modified (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 5 para. 23; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

C10 Act modified (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), ss. 192(2), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Commencement Information

I1 Act wholly in force at 1.9.1968 see s. 61(1)

Part I U.K. [F1 The Courts-Martial Appeal Court][F1 THE COURT MARTIAL APPEAL COURT]

Textual Amendments

F1 Pt. 1 heading substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 2; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

1 The Court and its jurisdiction. U.K.

(1) [F2 The Courts-Martial Appeal Court established by the M1 Courts-Martial (Appeals) Act 1951 for the purpose of hearing appeals from naval, army and air force courts-martial,] [F2 The Court Martial Appeal Court] shall continue in existence and is in this Act referred to either as “the Appeal Court” or as “the Court”.

(2) The Appeal Court shall be a superior court of record and shall, for the purposes of this Act and subject to its provisions, have full power to determine, in accordance with this Act, any question necessary to be determined for the purpose of doing justice in any case before the Court.

(3) The powers of the Appeal Court shall be exercisable by them so far as they think it necessary or expedient in the interests of justice that they should be exercised, and the Court may issue any warrants necessary for enforcing their orders or sentences.

(4) Except as provided by Part III of this Act, no appeal shall lie from any decision of the Appeal Court.

Textual Amendments

F2 Words in s. 1(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 3; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

M1 1951 c. 46.

2 Judges. U.K.

(1) The following shall be judges of the Appeal Court:—

(a) the ex officio and ordinary judges of the Court of Appeal and such of the judges . . . F3 of the High Court as the Lord Chief Justice may, . . . F3 , from time to time nominate for the purpose;

(b) such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose; and

(c) such of the judges of Her Majesty’s Supreme Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.

(2) The Lord Chancellor may appoint other persons, being persons of legal experience, to be judges of the Appeal Court and—

(a) the appointment of a person under this subsection shall be for such term as may be determined by the Lord Chancellor, with the approval of the Treasury, before his appointment and shall be subject to such conditions as may be so determined; and

(b) a person so appointed who ceases to hold office as a judge of the Appeal Court shall be eligible for reappointment.

(3) There may be paid out of moneys provided by Parliament to the persons appointed under subsection (2) of this section to be judges of the Appeal Court such remuneration, and to all the judges of the Court such travelling and subsistence allowances, as the Lord Chancellor may, with the approval of the Treasury, determine.

Textual Amendments

F3 Words repealed by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(2), 152(4), 153(4)(d), Sch. 7

Modifications etc. (not altering text)

C11 Functions of Treasury under s. 2 now exercisable by Minister for the Civil Service: S.I. 1971/2099

3 Other senior judges who may exercise powers of Appeal Court. U.K.

Any power under this Act which is exercisable by a judge of the Appeal Court may also be exercised—

(a) by any judge . . . F4 of the High Court;

(b) by any Lord Commissioner of Justiciary;

(c) by any judge of Her Majesty’s Supreme Court of Judicature of Northern Ireland,

notwithstanding that he is not for the time being a judge of the Appeal Court; and references in this Act to a judge of the Court shall be construed accordingly.

Textual Amendments

F4 Words repealed by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(3), 152(4), 153(4)(d), Sch. 7

4 Sittings. U.K.

(1) For the purpose of hearing and determining appeals under this Act, or any matter preliminary or incidental to an appeal, the Appeal Court shall be summoned in accordance with directions given [F5 in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005].

(2) [F6 [F7 If such directions so provide], the Appeal Court may sit in two or more divisions.]

(3) The Appeal Court shall sit at such place as [F8 such directions may provide], whether within or outside the United Kingdom.

Textual Amendments

F5 Words in s. 4(1) substituted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 2 para. 4(2); S.I. 2006/1014, art. 2(a), Sch. 1 para. 7

F6 S. 4(2) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 4, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F7 Words in s. 4(2) substituted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 2 para. 4(3); S.I. 2006/1014, art. 2(a), Sch. 1 para. 7

F8 Words in s. 4(3) substituted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 2 para. 4(4); S.I. 2006/1014, art. 2(a), Sch. 1 para. 7

[F9 5

(1) Subject to subsection (4) below, the Appeal Court shall be duly constituted if it consists of an uneven number of judges not less than three.

(2) Where—

(a) part of any proceedings before the Appeal Court has been heard by an uneven number of judges greater than three; and

(b) one or more members of the Court as constituted for the purpose of those proceedings are unable to continue,

then, subject to subsection (4) below, the Court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three.

(3) Subject to subsection (4) below, the Appeal Court shall, if it consists of two judges, be duly constituted for every purpose except—

(a) determining an appeal against—

(i) conviction; or

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

(iii) a finding of unfitness to stand trial [F10 or that the defendant did the act or made the omission charged against him];

(b) determining an application for leave to appeal to the House of Lords; and

(c) refusing an application for leave to appeal to the Appeal Court against conviction or any such finding as is mentioned in paragraph (a)(ii) or (iii), other than an application which has been refused by a single judge.

(4) At least one of the judges of which the Appeal Court consists at any sitting must be a judge of the Court by virtue of section 2(1) of this Act, except that where the Court is directed to sit at a place outside the United Kingdom the Lord Chancellor may, if he thinks it expedient to do so [F11 after consulting the Lord Chief Justice], direct that this provision shall not apply to the Court while sitting at that place.

(5) Where an appeal has been heard by the Appeal Court and the Court as constituted for that purpose consists of an even number of judges, then, if those judges are equally divided, the case shall be re-argued before and determined by an uneven number of judges not less than three.

[F12 (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.]]

Textual Amendments

F9 S. 5 substituted by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(4), 153(4)(d)

F10 Words in s. 5(3)(a)(iii) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 5; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F11 Words in s. 5(4) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 4 para. 62(2); S.I. 2006/1014, art. 2(a), Sch. 1 para. 11(e)

F12 S. 5(6) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 4 para. 62(3); S.I. 2006/1014, art. 2(a), Sch. 1 para. 11(e)

6 Power of Master of the Rolls to act for Lord Chief Justice. U.K.

The Master of the Rolls may exercise the powers conferred on the Lord Chief Justice by sections 2 and 4 above if at any time the Lord Chief Justice is unable to exercise them himself or there is a vacancy in the office of Lord Chief Justice.

7 Court staff, salaries and pensions. U.K.

(1) There shall be a registrar of the Appeal Court (in this Act referred to as “the registrar”) to be appointed by the Lord Chancellor, and the Lord Chancellor may appoint such other officers and servants of the Court as he may, with the approval of the Treasury as to numbers, determine.

(2) The remuneration of the officers and servants of the Appeal Court shall be such as the Lord Chancellor may, with the approval of the Treasury, determine, and [F13 the principal civil service pension scheme within the meaning of section 2 of the M2 Superannuation Act 1972 and for the time being in force shall, with the necessary adaptations, apply to officers and servants of the Court as it applies to other persons employed in the civil service of the State].

(3) The remuneration of the officers and servants of the Appeal Court and such other expenses of the Court as the Treasury may sanction shall be defrayed out of moneys provided by Parliament.

Textual Amendments

F13 Words substituted by Superannuation Act 1972 (c. 11), Sch. 6 para. 70

Modifications etc. (not altering text)

C12 Functions of Treasury under s. 7 now exercisable by Minister for the Civil Service: S.I. 1971/2099

Marginal Citations

M2 1972 c. 11.

Part II U.K. [F14 Appeals from Courts-Martial][F14 APPEALS FROM THE COURT MARTIAL]

Textual Amendments

F14 Pt. 2 heading substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 6; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Right of appeal and initiating procedure U.K.

8 Right of appeal. U.K.

(1) Subject to the provisions of this Act, a person convicted by [F15 court-martial] [F15 the Court Martial] may, with the leave of the Appeal Court, appeal to the Court [F16 —

(a) against his conviction; and

(b) against any sentence (not being a sentence fixed by law) passed on him for the offence for which he was convicted[F17 , whether passed on conviction or in subsequent proceedings].]

[F18 (1ZA) In subsection (1) above, the reference to a sentence fixed by law does not include a reference to an order made under subsection (2) or (4) of section 269 of the Criminal Justice Act 2003 in relation to a life sentence (as defined in section 277 of that Act) that is fixed by law.]

[F19 (1A) [F20 An appeal may also be brought, with the leave of the Appeal Court,—

F21 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) by a person on whom a fine is imposed or against whom a compensation order is made under paragraph 13 of any of those Schedules (parents and guardians subject to service jurisdiction).]]

(2) [F20 Subject as aforesaid, the person’s right of appeal shall not be exercisable—

(a) unless, within such period as may be prescribed, he presents to the Defence Council a petition praying that his conviction be quashed [F22 or, as the case may require, that his sentence be quashed F23 . . .]; and

(b) until either the prescribed period (beginning with the day on which the petition is presented) expires or he is notified by the Defence Council that the petition has not been granted, whichever event first occurs.]

(3) [F20 If a person presents a petition for the purposes of subsection (2)(a) above, but fails to do so within the period prescribed for those purposes and subsequently applies for leave to appeal, the Appeal Court may direct that he be treated as not having thereby lost his right of appeal if they think that there is a reasonable explanation of the failure and that it is in the interests of justice that he should be so treated.]

(4) [F20 Rules of court may provide that, in such circumstances as may be specified in the rules, a petition for the purposes of subsection (1) above which is presented to such person as may be specified in the rules shall be treated, for the purposes of that subsection, as having been presented to the Defence Council.]

F24 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15 Words in s. 8(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 7(a)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F16 S. 8(1): hyphen and sub-paras (a) and (b) substituted (1.4.1997 with savings) for words by 1996 c. 46, s. 17(2)(a); S.I. 1997/304, art. 2 (with art. 3)

F17 Words in s. 8(1)(b) added (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 7(a)(ii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F18 S. 8(1ZA) inserted (E.W.) (18.12.2003) by Criminal Justice Act 2003 (c. 44), ss. 271(2), 336(2)

F19 S. 8(1A) added by Armed Forces Act 1976 (c. 52, SIF 7:1), s. 22(5), Sch. 9 para. 16

F20 S. 8(1A)-(4) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 7(b), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F21 S. 8(1A)(a) repealed (1.4.1997 with savings) by 1996 c. 46, ss. 17(2)(b), 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with art. 3)

F22 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(2)

F23 Words in s. 8(2)(a) repealed (1.4.1997 with savings) by 1996 c. 46, s. 35(2), Sch. 7 Pt. III; S.I. 1997/304, art. 2, Sch. 1 (with art. 3)

F24 S. 8(5) repealed (1.4.1997 with savings) by 1996 c. 46, ss. 17(2)(c), 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2, Sch. 1 (with art. 3)

Modifications etc. (not altering text)

C13 S. 8 extended by 1995 c. 35, s. 12A(5)(6) (as inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 11 para. 2; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

9 Application for leave to appeal. U.K.

(1) Leave to appeal to the Appeal Court shall not be given except on an application in that behalf made by or on behalf of the appellant and lodged, within the prescribed period, with the registrar.

(2) The application must be in the prescribed form and specify the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed.

(3) The Appeal Court may extend the period within which an application for leave to appeal must be lodged, whether the period has expired or not.

(4) Rules of court may provide that, in such circumstances as may be specified in the rules, an application which is lodged with a person (other than the registrar) specified in the rules shall be treated for purposes of subsection (1) above as having been lodged with the registrar; and it shall be the duty of the specified person, if an application is lodged with him in accordance with the rules, to act as follows:—

(a) he shall forward the application to the registrar with as much expedition as practicable; and

(b) if it appears to him practicable to do so, and in all the circumstances expedient, he shall forthwith furnish the registrar (before the receipt by the latter of the application) with such particulars of the application as will enable the registrar to prepare a copy of it.

Modifications etc. (not altering text)

C14 S. 9(1) excluded (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 228(4), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

10 Alternative procedure for appeal from court-martial abroad. U.K.

[F25 (1) The following provisions apply where a person who has been convicted by a court-martial held outside the United Kingdom duly petitions the Defence Council in accordance with section 8 of this Act.

(2) If, before the expiration of the time for appealing, the Defence Council receive from the person convicted an application for leave to appeal to the Appeal Court accompanied by a request that the Council will forward the application to the registrar in the event of its being decided not to grant the petition, it shall be the duty of the Council to comply with that request.

(3) The convicted person’s right of appeal under section 8 of this Act becomes exercisable (if it has not already done so) on the happening of the event referred to in subsection (2) above, that is to say its being decided not to grant the petition.

(4) In this section “the time for appealing” means the period prescribed for the purpose of section 9(1) of this Act as the period within which an application for leave to appeal must be lodged.]

Textual Amendments

F25 S. 10 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 8, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

11 Consideration of application by Appeal Court. U.K.

(1) In considering whether or not to give leave to appeal the Appeal Court shall have regard to any expression of opinion made by F26 ... the Judge Advocate General that the case is a fit one for appeal, and if any such expression is so made they may, without more, give leave to appeal.

(2) Where the Appeal Court dismiss an application for leave to appeal they may, if they consider the application to have been frivolous or vexatious, order that any sentence passed upon the applicant in the proceedings from which it was sought to bring the appeal shall begin to run from the day on which the Appeal Court dismiss the application.

Textual Amendments

F26 Words in s. 11(1) repealed (1.1.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 9, Sch. 17; S.I. 2007/2913, art. 3

Disposal of appeal U.K.

12 Power to quash conviction as [F27 unsafe.] U.K.

[F28 (1) The Appeal Court—

(a) shall allow an appeal against conviction by [F29 court-martial] [F29 the Court Martial] if they think that the conviction is unsafe; and

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

(2) If the Appeal Court allow an appeal against conviction, they shall quash the conviction.

[F30 (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.]

Textual Amendments

F27 Word in s. 12 sidenote substituted (1.1.1996) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(2); S.I. 1995/3061, art. 3 (with art. 4)

F28 S. 12(1) substituted (1.1.1996) for s. 12(1) including the proviso by 1995 c. 35, s. 29(1), Sch. 2 para. 5(2); S.I. 1995/3061, art. 3 (with art. 4)

F29 Words in s. 12(1)(a) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 10(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F30 S. 12(3) added (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 10(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

13 [F31 Adjustment of sentence in case of conviction on two or more charges[F31 Power to re-sentence when some but not all convictions successfully appealed]]. U.K.

[F31 Where—

(a) it appears to the Appeal Court [F32 on an appeal against conviction] that an appellant, though not properly convicted on some charge preferred against him before the court-martial by which he was tried, was properly convicted on some other charge so preferred; and

(b) the sentence passed by the court-martial on the appellant was not warranted by the relevant Service Act for the offence of which he was convicted on the other charge,

the Court shall pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence so warranted as they think proper.]

[F31 (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.]

Textual Amendments

F31 S. 13 substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 11; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F32 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

14 Substitution of conviction on different charge [F33 otherwise than after guilty plea]. U.K.

(1) [F34 This section applies where an appellant has been convicted of an offence [F35 to which he did not plead guilty] and the court-martial by which he was tried could lawfully have found him guilty of some other offence, and it appears to the Appeal Court [F36 on an appeal against conviction] that the court-martial must have been satisfied of facts which proved him guilty of that other offence.]

[F34 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.]

(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding of the [F37 court-martial] [F37 Court Martial] a finding of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the [F37 court-martial] [F37 Court Martial], [F38 such sentence as they think proper, being a sentence warranted by the relevant Service Act for that other offence, but not a sentence of greater severity.] [F38 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.]

Textual Amendments

F33 Words in s. 14 added (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 12(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F34 S. 14(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 12(3); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F35 Words in s. 14(1) inserted (E.W.) (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 318(2), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(e)

F36 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

F37 Words in s. 14(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 12(4)(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F38 Words in s. 14(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 12(4)(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

[F39 14A Substitution of conviction on different charge after guilty plea E.W.

(1) This section applies where—

(a) an appellant has been convicted of an offence to which he pleaded guilty,

(b) if he had not so pleaded, he could lawfully have pleaded, or been found, guilty of some other offence, and

(c) it appears to the Appeal Court on an appeal against conviction that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of that other offence.

(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the appellant’s plea of guilty a plea of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the [F40 court-martial, such sentence as they think proper, being a sentence warranted by the relevant Service Act for that other offence, but not a sentence of greater severity.] [F40 Court Martial, 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.]]

Textual Amendments

F39 S. 14A inserted (E.W.) (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 318(3), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(e)

F40 Words in s. 14A(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 13; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

15 Variation of conviction so as to attract different sentence. U.K.

[F41 (1) Where an appellant has been convicted of an offence committed under circumstances involving the higher of two degrees of punishment, and it appears to the Appeal Court [F42 on an appeal against conviction] that the court-martial by which he was tried ought to have found him guilty of the offence as being committed under circumstances involving the lower degree of punishment, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the offence as being committed under circumstances involving the lower degree of punishment.

(2) Where an appellant has been convicted of an offence and it appears to the Appeal Court [F42 on an appeal against conviction] that the court-martial by which he was tried ought to have found him guilty of the offence subject to exceptions or variations, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the offence subject to exceptions or variations.

(3) Where the Appeal Court exercise the power conferred by subsection (1) or subsection (2) above, they may pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think proper, being a sentence warranted by the relevant Service Act for the offence specified or involved in the substituted finding, but not a sentence of greater severity.]

Textual Amendments

F41 S. 15 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 14, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F42 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

[F43 16 Substitution of finding of insanity or findings of unfitness to stand trial etc. U.K.

(1) This section applies where, on an appeal against conviction, 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 [F44 the] opinion—

(a) that the proper finding would have been one of not guilty by reason of insanity; or

(b) that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

[F45 (2) The Appeal Court shall make in respect of the appellant—

(a) a hospital order (with or without a restriction order);

(b) a supervision order; or

(c) an order for his absolute discharge.

(3) Where—

(a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

(b) the Appeal Court have power to make a hospital order,

the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are—

(c) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;

(d) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;

(e) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.]

[F45 (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).]

(5) Where the Appeal Court make an interim hospital order by virtue of this section—

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by [F46 a judicial officer] [F46 the Court Martial] and not by the Appeal Court; and

(b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to [F46 a judicial officer] [F46 the Court Martial].

(6) [F47 Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.]]

Textual Amendments

F43 S. 16 substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 7 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F44 Word in s. 16(1) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 15(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F45 S. 16(1A)-(3) substituted for (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 15(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F46 Words in s. 16(5) substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 15(c); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F47 S. 16(6) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 15(d), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

[F48 16A [F49 Powers on appeals against sentence[F49 Appeals against sentence]]. U.K.

[F49 On an appeal against sentence the Appeal Court, if they consider that the sentence is not appropriate for the case, may quash the sentence and pass in substitution for it such sentence as they think is appropriate, being a sentence which the court-martial had power to pass and which is not of greater severity than that for which it is substituted.]]

[F49 (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.]

Textual Amendments

F48 S. 16A added by Armed Forces Act 1971 (c. 33), s. 73(3)

F49 S. 16A substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 16; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Modifications etc. (not altering text)

C15 S. 16A modified by 1957 c. 53, s. 91A(4)(a) (as inserted (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), arts. 1, 31)

C16 S. 16A modified by 1976 c. 52, Sch. 3 para. 21(5)(a) (as inserted (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), arts. 1, 27)

C17 S. 16A modified by 1955 c. 19, s. 120ZA(4)(a) (as inserted (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), arts. 1, 25)

C18 S. 16A modified by 1955 c. 18, s. 120ZA(4)(a) (as inserted (18.7.2008) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694), arts. 1, 25)

C19 S. 16A modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 231(3), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C20 S. 16A modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 235(2), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C21 S. 16A modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 192(3), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C22 S. 16A modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 268(6), 383(2) (with s. 271(1)); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C23 S. 16A modified (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), ss. 216(3), 383(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

17 Term of sentence passed under s. 13, 14 [F50 or 15] [F50 , 14A or 16A]. U.K.

(1) [F51 The term of any sentence passed by the Appeal Court under section 13, 14 [F52 15 or 16A] of this Act shall, unless the Court otherwise direct, begin to run from the time from which it would have begun to run if it had been passed in the proceedings from which the appeal was brought.]

[F51 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.]

(2) [F53 A sentence passed by the Appeal Court under any of those sections shall—

(a) if passed on an appeal against conviction by a [F54 or the sentence of]a naval court-martial, be deemed, for purposes of the M3 Naval Discipline Act, to be a sentence passed by such a court-martial; and

(b) if passed on an appeal against conviction by [F54 or the sentence of]an army or air force court-martial, be deemed for purposes of the M4 Army Act or the M5 Air Force Act, as the case may be, to be a sentence passed by an army, or as the case may be, an air force court-martial, F55 . . ..]

Textual Amendments

F50 Words in s. 17 sidenote substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 17(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F51 S. 17(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 17(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F52 Words substituted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(5)

F53 S. 17(2) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 17(c), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F54 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(5)

F55 Words in s. 17(2)(b) repealed (1.4.1997) by 1996 c. 46, s. 35(2), SCh. 7 Pt. II; S.I. 1997/304, art. 2(with art. 3)

Marginal Citations

M3 1957 c. 53.

M4 1955 c. 18.

M5 1955 c. 19.

[F56 17A Appeals by civilians: application of Service Act provisions. U.K.

[F57 For the avoidance of doubt, the exercise of the power conferred by sections 13, 14, 15 and 16A above, in relation to an order under Schedule 5A to the M6 Army Act 1955, Schedule 5A to the M7 Air Force Act 1955 or Schedule 4A to the M8 Naval Discipline Act 1957 (powers of court on trial of civilians) shall be subject to the restrictions contained in paragraph 15 of each of those Schedules.]]

Textual Amendments

F56 S. 17A substituted (1.4.1997 with savings) by 1996 c. 46, s. 17(3); S.I. 1997/304, art. 2 (with art. 3)

F57 S. 17A repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 18, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

M6 1955 c. 18.

M7 1955 c. 19.

M8 1957 c. 53.

Retrial U.K.

18 Retrial generally excluded. U.K.

[F58 Except as provided by this Act, where the conviction of a person by court-martial for an offence has been quashed under this Act, he shall not be liable to be tried again for that offence by a court-martial or by any other court.]

Textual Amendments

F58 S. 18 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 19, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

19 Power to authorise retrial in certain cases. U.K.

(1) The Appeal Court shall have the power, on quashing a conviction, to make an order authorising the appellant to be retried by [F59 court-martial] [F59 the Court Martial], but shall only exercise this power when F60 . . . it appears to the Court that the interests of justice require that an order under this section should be made.

(2) This section has effect notwithstanding [F61 the restrictions on retrial imposed by section 134 of the Army Act and section 134 of the M9 Air Force M10 Act.] [F61 section 63 of the 2006 Act (service proceedings barring subsequent service proceedings).]

(3) [F62 An appellant shall not be retried under this section for an offence other than] [F62 An order under this section may authorise the appellant to be retried for] —

(a) the offence of which he was convicted by the [F63 original court-martial] [F63 Court Martial] and in respect of which his appeal is allowed as mentioned in subsection (1) above;

(b) any offence of which he could have been convicted [F64 at the original court-martial] [F64 by the Court Martial] on a charge of the first-mentioned offence; or

(c) any offence charged in the alternative in respect of which the [F65 court-martial] [F65 Court Martial] recorded no finding in consequence of convicting him of the first-mentioned offence.

(4) A person who is to be retried under this section for an offence shall, if the Appeal Court so directs, be retried on a fresh charge or charges specified in the direction; [F66 but whether he is so tried or is retried on one or more of the original charges, no fresh investigation or other steps shall be taken under sections 76 to 79 of the Army Act or sections 76 to 79 of the Air Force Act (investigation and summary disposal of charge by commanding officer) in relation to the charge or charges on which he is to be retried.] [F66 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).]

[F67 (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).]

Textual Amendments

F59 Words in s. 19(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F60 Words in s. 19(1) repealed (01.01.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), ss. 26(1)(2), 27(2), Sch. 2 para. 8, Sch. 3, S.I. 1991/2719, arts. 2, 3(3), Sch.

F61 Words in s. 19(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F62 Words in s. 19(3) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(c)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F63 Words in s. 19(3)(a) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(c)(ii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F64 Words in s. 19(3)(b) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(c)(iii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F65 Words in s. 19(3)(c) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(c)(iv); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F66 Words in s. 19(4) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(d); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F67 S. 19(5) added (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 20(e); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

M9 1955 c. 18.

M10 1955 c. 19.

20 Implementation of authority for retrial, and supplementary orders of Appeal Court. U.K.

[F68 (1) The limitations imposed by—

• section 52 of the M11 Naval Discipline Act;

• section 132 of the Army Act; and

• section 132 of the Air Force Act,

with respect to the time within which a trial under those Acts respectively may be begun, shall not apply in the case of a retrial authorised by an order of the Appeal Court under section 19 of this Act; but a person to whom such an order applies shall not be retried unless the order convening the court-martial is issued within the period of three months beginning with the date of the order under section 19.]

[F68 (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).]

(2) The Appeal Court may, where they authorise a retrial, make such orders as appear to them to be necessary or expedient for the retention until the relevant time of property or money which has been restored, delivered or paid in pursuance of an order made on or in consequence of the original conviction or has been placed in safe custody while the operation of any such order is suspended.

[F69 (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.]

(3) Where retrial is authorised in the case of a person who immediately before the date of the authorisation was liable to be detained in pursuance of [F70 a direction][F70 an order or direction] under United Kingdom mental health legislation, that [F71 order or] direction shall continue in force until the relevant time as if his conviction had not been quashed.

[F72 (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.]

(4) The legislation referred to in subsection (3) above is [F73 Part III of the Mental Health Act 1983], [F74 [F75 Part VI of the Mental Health (Scotland) Act 1984] [F75 the Mental Health (Care and Treatment) (Scotland) Act 2003]] and Part III of the Mental Health [F76 (Northern Ireland) Order 1986].

[F77 (4A) Where retrial is authorised in the case of a person who—

(a) was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

(b) was then made subject to a community treatment order (within the meaning of that Act); and

(c) was subject to that community treatment order immediately before the date of the authorisation,

the order or direction under Part 3 of that Act and the community treatment order shall continue in force until the relevant time (as defined in subsection (3A)) as if his conviction had not been quashed.

(4B) An order under subsection (1E)(a) is of no effect in relation to a person for so long as he is subject to a community treatment order.]

(5) [F78 In subsections (2) and (3) above the references to “the relevant time” are references to the expiration of the period of three months mentioned in subsection (1) of this section or, if during that period a court-martial has been convened for the retrial of an appellant, the time when his case is finally disposed of:

Provided that for the purposes of subsection (2) above the relevant time, in a case where the appellant is found guilty on his retrial, is the expiration of the period of twenty-eight days beginning with the date of the finding.]

(6) Schedule 1 to this Act contains additional provisions applicable to a retrial authorised by order of the Appeal Court under section 19 [F79 of this Act; and of the four Parts of the Schedule, Part I applies to retrial under the M12 Naval Discipline Act; Part II applies to retrial under the Army Act; Part III applies to retrial under the M13 Air Force M14 Act; and Part IV applies to all three cases.]

Textual Amendments

F68 S. 20(1)-(1H) substituted for s. 20(1) (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F69 S. 20(2A) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F70 Words in s. 20(3) substituted (24.6.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(c)(i); S.I. 2008/1650, art. 4(a)

F71 Words in s. 20(3) inserted (24.6.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(c)(ii); S.I. 2008/1650, art. 4(a)

F72 S. 20(3A) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(d); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F73 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(a)

F74 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 10

F75 Words in s. 20(4) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(e); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F76 Words substituted by S.I. 1986/596, art. 6(a)

F77 S. 20(4A)(4B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), s. 56(1), Sch. 4 para. 3(2); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F78 S. 20(5) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(f), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F79 Words in s. 20(6) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(g), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

M11 1957 c. 53.

M12 1957 c. 53.

M13 1955 c. 18.

M14 1955 c. 19.

Insanity U.K.

21 Appeal against finding of not guilty by reason of insanity. U.K.

(1) A person who has been tried by [F80 court-martial] [F80 the Court Martial] for an offence and been found not guilty by reason of insanity may, with the leave of the Appeal Court, appeal to the Court against the finding[F81 ; and in relation to any such appeal this Part of this Act, except [F82 section 8(2) and] sections 13 to 16, shall apply, subject to this section and section 22 below, as it applies in relation to an appeal by a person convicted against his conviction (with the necessary adaptations of references to a person convicted or to conviction).]

[F83 (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).]

(2) Where apart from this subsection—

(a) an appeal against a finding of not guilty by reason of insanity would fall to be allowed; and

(b) none of the grounds for allowing it relates to the question of the insanity of the appellant,

the Appeal Court may dismiss the appeal if they are of [F84 the] opinion that but for the insanity of the appellant the proper finding would have been that he was guilty of an offence other than the offence charged.

Textual Amendments

F80 Words in s. 21(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 22(a)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F81 Words in s. 21(1) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 22(a)(ii), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F82 Words in s. 21(1) inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 8 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F83 S. 21(1A)(1B) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 22(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F84 Word in s. 21(2) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 22(c); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Modifications etc. (not altering text)

C24 S. 21 extended by 1995 c. 35, s. 12A(7) (as inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 11 para. 2; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

22 Consequences where appeal under s. 21 allowed. U.K.

(1) The following provisions shall have effect where an appeal against a finding of not guilty by reason of insanity is allowed by the Appeal Court.

(2) If the ground, or one of the grounds, for allowing the appeal is that the finding as to the appellant’s insanity ought not to stand and the Appeal Court are of [F85 the] opinion that the proper finding would have been a finding of guilty of an offence (whether the offence charged or any other offence of which the [F86 court-martial] [F86 Court Martial] could have found him guilty), the Court shall substitute for the finding of the [F86 court-martial] [F86 Court Martial] a finding of guilty of that offence.

(3) On substituting a finding of guilty of an offence, the Appeal Court shall have the like powers of sentencing the appellant, and other powers, as the [F87 court-martial which tried him] [F87 Court Martial] would have had on the like finding of guilty; and section 17 of this Act shall apply as in the case of a sentence passed by the Court under [F88 section 13, 14 or 15 of this Act] [F88 a provision mentioned in section 17(1)].

[F89 (4) [F90 Subject to section 23 below,] in any case where subsection (2) above does not apply, the Appeal Court shall substitute for the finding appealed against a finding of not guilty.]

[F89 (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.]

Textual Amendments

F85 Word in s. 22(2) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 23(a)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F86 Words in s. 22(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 23(a)(ii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F87 Words in s. 22(3) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 23(b)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F88 Words in s. 22(3) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 23(b)(ii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F89 S. 22(3A)-(5) substituted for 22(4) (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 23(c); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F90 Words in s. 22(4) inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 9 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

[F91 23 Substitution of findings of unfitness to stand trial etc. U.K.

[F92 (1) This section applies where, on an appeal under section 21 of this Act, 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 opinion that—

(a) the case is not one where there should have been a finding of not guilty; but

(b) there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) The Appeal Court shall make in respect of the appellant—

(a) a hospital order (with or without a restriction order);

(b) a supervision order; or

(c) an order for his absolute discharge.

(3) Where—

(a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

(b) the Appeal Court have power to make a hospital order,

the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are—

(c) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;

(d) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;

(e) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

(5) Where the Appeal Court make an interim hospital order by virtue of this section—

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and

(b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.]]

Textual Amendments

F91 S. 23 substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 10 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F92 S. 23 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 24, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Prospective

F93 23A Substitution of finding of not guilty. U.K.

(1) This section applies where, in accordance with section 22(4) of this Act, the Appeal Court substitute a finding of not guilty and the Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion—

(a) that the appellant is suffering from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) that he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(2) The Appeal Court shall—

(a) in the case of an appellant detained pursuant to an admission order made by a court-martial, make an order for his continued detention;

(b) in any other case, make an order that the appellant be admitted for assessment, in accordance with regulations made by the Secretary of State, to such hospital as may be specified by the Secretary of State.

(3) An order under subsection (2) above shall be treated as if it had been made by a civil court in England and Wales, Scotland or Northern Ireland, as the Appeal Court may direct, and the appropriate mental health legislation shall apply accordingly with such modifications as may be prescribed by regulations made by the Secretary of State.

(4) The power of the Secretary of State under subsections (2)(b) and (3) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) In this section “hospital” and “mental disorder” have the same meanings as in the appropriate mental health legislation.

Textual Amendments

F93 Ss. 23 and 23A substituted (prosp.) for s. 23 by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 9

Unfitness to stand trial U.K.

24 Appeal against finding of unfitness. U.K.

(1) A person found by [F94 a court-martial] [F94 the Court Martial] to be unfit to stand [F95 trial and to have done the act or made the omission charged against him] may, with the leave of the Appeal Court, appeal to the Court against [F96 either or both of those findings].

(2) [F97 In relation to an appeal under this section, this Part of this Act, except [F98 section 8(2) and] sections 13 to 16, shall apply (subject to section 25 below) as it applies in relation to an appeal by a person convicted against his conviction (with the necessary adaptations of references to a person convicted or to conviction).]

Textual Amendments

F94 Words in s. 24(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 25(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F95 Words in s. 24(1) substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 11(2)(a) (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F96 Words in s. 24(1) substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 11(2)(b) (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F97 S. 24(2) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 25(b), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F98 Words in s. 24(2) inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 11(3) (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

Modifications etc. (not altering text)

C25 S. 24 extended by 1995 c. 35, s. 12A(8) (as inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 11 para. 2; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

[F99 25 Disposal of appeal under s. 24 U.K.

(1) This section applies to appeals under section 24 of this Act.

[F100 (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.]

(2) Where the Appeal Court [F101 allow an appeal against] [F101 quash] a finding that the appellant is unfit to stand trial—

(a) the [F102 appellant may be tried accordingly] [F102 Court may make an order authorising the appellant to be tried] for the offence with which he was charged; and

(b) [F103 the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant.]

[F103 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).]

(3) [F104 Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity).]

[F104 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.]]

Textual Amendments

F99 S. 25 substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 12 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F100 S. 25(1A)(1B) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 26(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F101 Word in s. 25(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 26(3)(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F102 Words in s. 25(2)(a) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 26(3)(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F103 S. 25(2)(b) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 26(3)(c); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F104 S. 25(3) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 26(4); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

[F105 Appeal against order made in cases of insanity or unfitness to stand trial U.K.

Textual Amendments

F105 Ss. 25A, 25B and cross-heading inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 13 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

25A Right of appeal against hospital order etc. U.K.

[F106 (1) A person in whose case a court-martial—

(a) makes a hospital order or interim hospital order by virtue of the relevant Service Act, or

(b) makes a supervision order under the relevant Service Act,

may appeal to the Appeal Court against the order.

(2) An appeal under this section lies only with the leave of the Appeal Court.]

[F106 (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).]

Textual Amendments

F106 S. 25A substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 27; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

25B Disposal of appeal under s. 25A U.K.

(1) If on an appeal under section 25A of this Act the Appeal Court consider that the appellant should be dealt with differently from the way in which the [F107 court below] [F107 Court Martial] dealt with him—

(a) they may quash any order which is the subject of the appeal; and

(b) they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the [F107 court below] [F107 Court Martial] had power to make.

(2) The fact that an appeal is pending against an interim hospital order [F108 under the Mental Health Act 1983] shall not affect the power of the [F109 court below] [F109 Court Martial] to renew or terminate the order or deal with the appellant on its termination.

[F110 (3) Where the Appeal Court make an interim hospital order by virtue of this section—

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and

(b) section 38(7) of the said Act of 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(4) The fact that an appeal is pending against a supervision order under the relevant Service Act shall not affect any power conferred on any other court to revoke or amend the order.

(5) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.]

[F110 (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.]]

Textual Amendments

F107 Words in s. 25B(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 28(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F108 Words in s. 25B(2) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 28(b), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F109 Words in s. 25B(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 28(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F110 S. 25B(3)(4) substituted for s. 25B(3)-(5) (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 28(c); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

General procedural provisions U.K.

26 Presentation, of appellant’s case. U.K.

[F111 An appellant may, if he so desires, instead of presenting his case orally, present it in writing in the prescribed form.]

Textual Amendments

F111 S. 26 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 29, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

27 [F112 Presence of appellant at hearing[F112 Right of appellant to be present]]. U.K.

[F112 An appellant shall not be entitled to be present at the hearing of an appeal to the Appeal Court or at any proceedings preliminary or incidental to such an appeal, except where the Court give him leave to be so; and accordingly any power of the Court to pass a sentence may be exercised notwithstanding the absence of the appellant.]

[F112 (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.]

Textual Amendments

F112 S. 27 substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 30; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

28 Evidence. U.K.

(1) The Appeal Court may—

(a) order the production of any document, exhibit or other thing connected with the proceedings the production of which appears to them necessary for the determination of the case;

(b) order any witness who would have been a compellable witness [F113 at the trial] [F113 in the proceedings from which the appeal lies] to attend for examination and be examined before the Court, whether or not he was called [F113 at the trial] [F113 in those proceedings]; and

[F114 (c) receive any evidence which was not adduced [F115 at the trial] [F115 in the proceedings from which the appeal lies].]

[F116 (2) The Appeal Court shall, in considering whether to receive any evidence, have regard in particular to—

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible [F117 at the trial] [F117 in the proceedings from which the appeal lies] on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence [F118 at the trial] [F118 in those proceedings].]

(3) Subsection (1)(c) above applies to any [F119 evidence of a] witness (including the appellant) who is competent but not compellable F120 . . .

(4) The Appeal Court may order the examination of any witness whose attendance may be required under subsection (1)(b) of this section to be conducted in the prescribed manner before any judge of the Court or before any other person appointed by the Court for that purpose, and allow the admission of any depositions so taken as evidence before the Court.

Textual Amendments

F113 Words in s. 28(1)(b) substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 31(a)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F114 S. 28(1)(c) substituted (1.1.1996 subject to savings) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(3)(a); S.I. 1995/3061, art. 3 (with art. 4)

F115 Words in s. 28(1)(c) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 31(a)(ii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F116 S. 28(2) substituted (1.1.1996 subject to savings) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(3)(b); S.I. 1995/3061, art. 3 (with art. 4)

F117 Words in s. 28(2)(c) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 31(b)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F118 Words in s. 28(2)(d) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 31(b)(ii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F119 Words in s. 28(3) inserted (1.1.1996 subject to savings) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(3)(c); S.I. 1995/3061, art. 3 (with art. 4)

F120 Words in s. 28(3) repealed (1.1.1996 subject to savings) by 1995 c. 35, s. 29(2), SCh. 3; S.I. 1995/3061, art. 3 (with art. 4)

29 Power to call for report by member of [F121 trial court] [F121 the Court Martial]. U.K.

(1) The Appeal Court may order the taking of such steps as are requisite to obtain from any member of the [F122 court-martial by which the appellant was tried, or the person who officiated as judge advocate at the trial,] [F122 court in the proceedings from which the appeal lies] a report giving his opinion on the case or on any point arising in it, or containing a statement as to any facts of which the ascertainment appears to the Court to be material for the purpose of determining the case.

(2) [F123 The Court shall not make an order under this section for the purpose of obtaining a report from a member of a court-martial other than the president of it unless they also make such order for the purpose of obtaining a report from the president or are satisfied that the obtaining of a report from him is impracticable or would involve undue delay.]

Textual Amendments

F121 Words in s. 29 sidenote substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 32(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F122 Words in s. 29(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 32(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F123 S. 29(2) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 32(c), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

[F124 29A Power to order investigation by Criminal Cases Review Commission U.K.

(1) On an appeal against conviction or an application for leave to appeal against conviction, the Appeal Court may direct the Criminal Cases Review Commission to investigate and report to the Court on any matter if it appears to the Court that—

(a) in the case of an appeal, the matter is relevant to the determination of the appeal and ought, if possible, to be resolved before the appeal is determined;

(b) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;

(c) an investigation of the matter by the Commission is likely to result in the Court's being able to resolve it; and

(d) the matter cannot be resolved by the Court without an investigation by the Commission.

(2) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 36 of this Act.

(3) A direction by the Appeal Court under subsection (1) above shall be given in writing and shall specify the matter to be investigated.

(4) Copies of such a direction shall be made available to the appellant and the respondent.

(5) Where the Commission have reported to the Appeal Court on any matter which they have been directed under subsection (1) above to investigate, the Court—

(a) shall notify the appellant and the respondent that the Commission have reported; and

(b) may make available to the appellant and the respondent the report of the Commission and any statements, opinions and reports which accompanied it.

(6) In this section “respondent” includes a person who will be a respondent if leave to appeal is granted.]

Textual Amendments

F124 S. 29A inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 11 para. 1; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

30 Other powers for facilitating disposal of appeal. U.K.

(1) Where any question arising on an appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Appeal Court conveniently be conducted before them, the Court may order the reference of the question in the prescribed manner for inquiry and report to a special commissioner appointed by them, and act upon the report of the commissioner so far as they think fit to adopt it.

(2) The Appeal Court may appoint a person with special expert knowledge to act as assessor to the Court in any case where it appears to them that such knowledge is required for the proper determination of the case.

(3) There may be paid out of moneys provided by Parliament to a special commissioner to whom a question is referred under this section for inquiry and report, and to a person appointed as assessor to the Appeal Court, such remuneration and such travelling and subsistence allowances as may be prescribed by regulations made by the Lord Chancellor.

(4) The power of the Lord Chancellor under subsection (3) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Costs U.K.

31 Costs of successful appeal. U.K.

(1) Where the Appeal Court allow an appeal [F125 other than an appeal against sentence] they may if they think fit, direct the payment by the Secretary of State of costs to the appellant.

(2) The costs which may under this section be directed to be paid are such sums as appear to the Appeal Court reasonably sufficient to compensate the appellant for any expenses properly incurred by him in the [F126 case that is to say—

(a) in the prosecution of his appeal (including any proceedings preliminary or incidental thereto); or

(b) in carrying on his defence before the court-martial from which the appeal lies, or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the first-mentioned court-martial.]

[F126 proceedings (in the Appeal Court and below).]

Textual Amendments

F125 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(6)

F126 Words in s. 31(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 33; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

32 Costs against appellant. E+W+S

(1) Where the Appeal Court dismiss an appeal or an application for leave to appeal they may, if they think fit, order the appellant or applicant (as the case may be) to pay to the Secretary of State the whole or any part of the costs of the appeal or application, including the costs of copying or transcribing any documents for the use of the Appeal Court.

(2) An order under this section may be enforced—

[F127 (a) in the same manner as an order for costs made by the criminal division of the Court of Appeal F128 . . .; or]

(b) [F129 by making deductions from pay due to the appellant or applicant, as the case may be,

[F129 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,]]

or partly in the one way and partly in the other.

(3) Any sums which by virtue of subsection (2)(a) above are recovered from a person by the Secretary of State shall be paid into the Exchequer.

Extent Information

E1 This version of this provision extends to England and Wales and Scotland only; a separate version has been created for Northern Ireland only.

Textual Amendments

F127 S. 32(2)(a) substituted (E.W.) (S.) by Administration of Justice Act 1970 (c. 31), s. 41(7)

F128 Words in s. 32(2)(a) repealed (1.4.1997 with savings) by 1996 c. 46, s. 35(2), Sch. 7 Pt. III; S.I. 1996/304, art. 2, Sch. 1 (with art. 3)

F129 S. 32(2)(b) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 34; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

32 Costs against appellant. N.I.

(1) Where the Appeal Court dismiss an appeal or an application for leave to appeal they may, if they think fit, order the appellant or applicant (as the case may be) to pay to the Secretary of State the whole or any part of the costs of the appeal or application, including the costs of copying or transcribing any documents for the use of the Appeal Court.

(2) An order under this section may be enforced—

(a) in the same manner as an order for the payment of costs made by the High Court in civil proceedings; or

(b) [F129 by making deductions from pay due to the appellant or applicant, as the case may be,]

[F129 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,]

or partly in the one way and partly in the other.

(3) Any sums which by virtue of subsection (2)(a) above are recovered from a person by the Secretary of State shall be paid into the Exchequer.

Extent Information

E2 This version of this provision extends to Northern Ireland only; a separate version has been created for England and Wales and Scotland only.

Textual Amendments

F129 S. 32(2)(b) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 34; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

33 Witnesses’ expenses. U.K.

(1) The Appeal Court may, whether or not they exercise their powers under either of the two foregoing sections, order the payment out of moneys provided by Parliament of such sums as appear to the Court reasonably sufficient to compensate any person properly attending to give evidence on an appeal under this Part of this Act or any proceedings preliminary or incidental thereto (whether or not he gives evidence) for the expense, trouble or loss of time properly incurred in or incidental to his attendance.

[F130 (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.]

(2) The amount of any costs ordered to be paid under this section shall be ascertained as soon as practicable by the registrar.

Textual Amendments

F130 S. 33(1A) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 35; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

[F131 33A Appellant’s expenses. U.K.

Without prejudice to section 31 above, where an appellant who is not in custody appears before the Appeal Court either on the hearing of his appeal or in any preliminary or incidental proceedings, the Appeal Court may direct the Secretary of State to pay him the expenses of his appearance.]

Textual Amendments

F131 S. 33A added by Administration of Justice Act 1977 (c. 38, SIF 37), s. 5(1)

Special references to Appeal Court U.K.

34 Reference of cases by Service authorities. U.K.

(1) If, in the case of the conviction of a person by [F132 court-martial] [F132 the Court Martial],—

(a) it appears to F133 ... the Judge Advocate General that the finding of the [F132 court-martial] [F132 Court Martial] involves a point of law of exceptional importance which in his opinion should be determined by the Appeal Court; or

(b) it appears to the Secretary of State, upon consideration of matters appearing to him not to have been brought to the notice of the [F132 court-martial] [F132 Court Martial] at the trial, to be expedient that the finding of the [F132 court-martial] [F132 Court Martial] should be considered or reconsidered by the Appeal Court,

[F134 the Judge Advocate of Her Majesty’s Fleet, the Judge Advocate General] [F134 the Judge Advocate General] or the Secretary of State, as the case may be, may refer the finding to the Court.

(2) A reference to the Appeal Court under [F135 subsection (1) above] shall, for all purposes [F136 other than that of section 32] of this Act, be treated as an appeal by the person convicted against his conviction.

(3) [F137 The foregoing provisions of this section shall apply in the case of a finding by a court-martial of not guilty by reason of insanity as they apply in the case of the conviction of a person by court-martial.]

[F138 (4) The Secretary of State may, if consideration by the Appeal Court appears to him for any reason desirable, refer the sentence passed on any person convicted by [F139 a court-martial] [F139 the Court Martial] to the Appeal Court.

(5) Any reference under subsection (4) above shall be treated as an appeal by the person convicted against sentence for all purposes except those of section 32 of this Act.]

Textual Amendments

F132 Words in s. 34(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 36(a)(i); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F133 Words in s. 34(1)(a) repealed (1.1.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 36(a)(ii), Sch. 17; S.I. 2007/2913, art. 3

F134 Words in s. 34(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 36(a)(iii); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F135 Words substituted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(7)

F136 Words substituted by Administration of Justice Act 1977 (c. 38, SIF 37), s. 5(2)

F137 S. 34(3) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 36(b), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F138 S. 34(4)(5) substituted for s. 34(4) (1.4.1997 with savings) by virtue of 1996 c. 46, s. 17(4); S.I. 1997/304, art. 2 (with art. 3)

F139 Words in s. 34(4) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 36(c); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F140 U.K.

Textual Amendments

F140 S. 35repealed by Administration of Justice Act 1977 (c. 38, SIF 37), ss. 5(3), 32, Sch. 5 Pt. VI

Supplementary U.K.

36 Powers under Part II which are exercisable by single judge. U.K.

(1) The following powers of the Appeal Court F141 ..., that is to say the power—

(a) [F142 to give a direction under section 8(3) that a person be treated as not having lost his right of appeal;]

(b) to give leave to appeal;

(c) to extend the period within which an application for leave to appeal must be lodged;

[F143 (ca) to make orders, or impose requirements, under section 20(1E);]

(d) to make orders under section 20(2) and discharge or revoke such orders;

(e) to allow an appellant to be present at any proceedings;

(f) to order witnesses to attend for examination; F144 ...

(g) to make an order under section 32 for the payment of costs,

[F145 (h) to make orders under section 28(1)(a).]

[F146 (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);]

[F147 [F148 and the power to give directions under F149 ...] [F150 section 3(4) of the Sexual Offences (Amendment) Act 1992] may be exercised by any judge of the Appeal Court in the same manner as they may be exercised by the Court, and subject to the same provisions.]

(2) If the judge refuses an application on the part of an appellant to exercise in his favour any of the powers mentioned in subsection (1) above (other than the power to make an order for the payment of costs), the appellant, upon making a requisition in that behalf within the prescribed period and in the prescribed form and manner, shall be entitled to have the application determined by the Appeal Court as duly constituted [F151 for the purpose in accordance with section 5 of this Act].

Textual Amendments

F141 Words in s. 36(1) repealed (24.6.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 37(a), Sch. 17; S.I. 2008/1650, art. 4(a)

F142 S. 36(1)(a) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 37(b), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F143 S. 36(1)(ca) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 37(c); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F144 Word in s. 36(1)(f) repealed (1.4.2005) by Courts Act 2003 (c. 39), ss. 90(1), 110(1), Sch. 10; S.I. 2005/910, art. 3(v)

F145 S. 36(1)(h) inserted (1.4.2005) by Courts Act 2003 (c. 39), ss. 90(1), 110(1); S.I. 2005/910, art. 3(v)

F146 S. 36(1)(i)(j) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 37(e); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F147 Words in s. 36(1) repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 37(d), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F148 Words inserted (E.W.) (and (S.N.I.) so far as relating to Courts-Martial and the Courts-Martial Appeal Court) by Sexual Offences (Amendment) Act 1976 (c. 82, SIF 39:1), s. 5(6)

F149 Words in s. 36(1) repealed (6.12.2006) by Youth Justice and Criminal Evidence Act 1999 (c. 23), s. 68(3)(4), Sch. 6 (with Sch. 7); S.I. 2006/2885, art. 2(b)

F150 Words in s. 36(1) inserted (1.8.1992) (E.W., and S. and N.I. so far as relating to courts-martial and the Courts-Martial Appeal Court) by Sexual Offences (Amendment) Act 1992 (c. 34), s. 7(4) (with s. 6(4)); S.I. 1992/1336, art.2

F151 Words substituted by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(5), 153(4)(d)

[F152 36A Powers under Part II which are exercisable by registrar. U.K.

(1) The following powers of the Appeal Court under this Part of this Act, namely the power—

(a) to extend the time within which notice of appeal or of application for leave to appeal may be given; F153 ...

(b) to order a witness to attend for examination, [F154 and—

(c) to make orders under section 28(1)(a)]

may be exercised by the registrar in the same manner as they may be exercised by the Court and subject to the same restrictions.

(2) If the registrar refuses an application on the part of an appellant to exercise in his favour any power specified in subsection (1) above, the appellant shall be entitled to have the application determined by any judge of the Appeal Court.]

Textual Amendments

F152 S. 36A inserted (1.10. 1996 with savings) by 1996 c. 46, s. 18; S.I. 1996/2474, art. 2 (with art. 3)

F153 Word in s. 36A(1)(a) repealed (1.4.2005) by Courts Act 2003 (c. 39), ss. 90(2), 110(1), Sch. 10; S.I. 2005/910, art. 3(v)

F154 S. 36A(1)(c) and word inserted (1.4.2005) by Courts Act 2003 (c. 39), ss. 90(2), 110(1); S.I. 2005/910, art. 3(v)

[F155 36B Procedural directions: powers of single judge and registrar U.K.

(1) The power of the Appeal Court to determine an application for procedural directions may be exercised by—

(a) a judge of the Appeal Court, or

(b) the registrar.

(2) “Procedural directions” means directions for the efficient and effective preparation of—

(a) an application for leave to appeal, or

(b) an appeal,

under this Part.

(3) A judge of the Appeal Court may give such procedural directions as he thinks fit—

(a) when acting under subsection (1);

(b) on a reference from the registrar;

(c) of his own motion, when he is exercising, or considering whether to exercise, any power of his in relation to the application or appeal.

(4) The registrar may give such procedural directions as he thinks fit—

(a) when acting under subsection (1);

(b) of his own motion.

Textual Amendments

F155 Ss. 36B, 36C inserted (1.4.2005) by Courts Act 2003 (c. 39), s. 90(3)(4), 110(1); S.I. 2005/910, art. 3(v)

36C Appeals against procedural directions U.K.

(1) Subsection (2) applies if a judge of the Appeal Court gives, or refuses to give, procedural directions.

(2) The Appeal Court may, on an application to it under subsection (5)—

(a) confirm, set aside or vary any procedural directions given by the judge, and

(b) give such procedural directions as it thinks fit.

(3) Subsection (4) applies if the registrar gives, or refuses to give, procedural directions.

(4) A judge of the Appeal Court may, on an application to him under subsection (5)—

(a) confirm, set aside or vary any procedural directions given by the registrar, and

(b) give such procedural directions as he thinks fit.

(5) An application under this subsection may be made by—

(a) an appellant;

(b) the [F156 Defence Council] [F156 Director of Service Prosecutions], if the directions—

(i) relate to an application for leave to appeal and appear to need the [F157 Defence Council’s] [F157 Director of Service Prosecutions'] assistance to give effect to them,

(ii) relate to an application for leave to appeal which is to be determined by the Appeal Court, or

(iii) relate to an appeal.]

Textual Amendments

F155 Ss. 36B, 36C inserted (1.4.2005) by Courts Act 2003 (c. 39), s. 90(3)(4), 110(1); S.I. 2005/910, art. 3(v)

F156 Words in s. 36C(5)(b) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 38(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F157 Words in s. 36C(5)(b) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 38(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

37 [F158 Documents relating to trial to be furnished for appeal][F158 Provision of record of proceedings of the Court Martial]. U.K.

[F158 (1) In the case of every appeal or application for leave to appeal to the Appeal Court from a naval court-martial it shall be the duty of the Defence Council to furnish to the registrar, in accordance with rules of court, the proceedings of the court-martial and any petition presented by the person tried thereby.

(2) In the case of every appeal or application for leave to appeal from an army or air force court-martial, it shall be the duty of the Judge Advocate General to furnish to the registrar, in accordance with rules of court, the proceedings of the court-martial F159 . . . and any petition presented by the person tried thereby.]

[F158 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.]

Textual Amendments

F158 S. 37 substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 39; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F159 Words in s. 37(2) repealed (1.4.1997) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with art. 3)

[F160 [F161 37A False statements in computer record certificates. U.K.

(1) Any person who in a certificate tendered under paragraph 8 of Schedule 3 to the Police and Criminal Evidence Act 1984 (computer records) in evidence before the Appeal Court makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;

(b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

(2) Proceedings for an offence under this section committed outside the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(3) In this section “statutory maximum” has the meaning given by section 74 of the Criminal Justice Act M15 1982.]]

Textual Amendments

F160 S. 37A repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 5

F161 S. 37A inserted by Police and Criminal Evidence Act 1984 (c. 60, SIF 95), s. 119, Sch. 6 para. 34

Marginal Citations

M15 1982 c.48 (39:1).

38 Defence of appeals. U.K.

It shall be the duty of the [F162 Defence Council] [F162 Director of Service Prosecutions] to undertake the defence of any appeal to the Appeal Court under this Part of this Act.

Textual Amendments

F162 Words in s. 38 substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 40; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Part III U.K. [F163 Appeal from Courts-Martial Appeal Court to House of Lords][F163 APPEAL FROM COURT MARTIAL APPEAL COURT TO SUPREME COURT]

Textual Amendments

F163 Pt. 3 heading substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 41; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

39 Right of appeal. U.K.

(1) An appeal lies to the House of Lords, at the instance of the accused or the [F164 Defence Council] [F164 Director of Service Prosecutions], from any decision of the Appeal Court on an appeal to them under Part II of this Act [F165 or the Courts-Martial (Prosecution Appeals) Order 2006], whether given by them when sitting within or outside the United Kingdom.

(2) The appeal lies only with the leave of the Appeal Court or the House of Lords; and such leave shall not be granted unless it is certified by the Appeal Court that a point of law of general public importance is involved in the decision and it appears to the Court or the House of Lords, as the case may be, that the point is one which ought to be considered by that House.

Textual Amendments

F164 Words in s. 39(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 42; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F165 Words in s. 39(1) inserted (5.7.2006) by The Courts-Martial (Prosecution Appeals) Order 2006 (S.I. 2006/1786), arts. 1(1), 9(2) (with art. 1(2))

40 Application for leave to appeal. U.K.

(1) An application to the Appeal Court for leave to appeal to the House of Lords shall be made within the period of [F166 28] days beginning with the [F167 relevant date ] ; and an application to the House of Lords for leave shall be made within the period of [F166 28] days beginning with the date on which the application is refused by the Appeal Court.

[F168 (1A) In subsection (1), “the relevant date” means—

(a) the date of the Appeal Court’s decision, or

(b) if later, the date on which the Court gives reasons for its decision.]

(2) The House of Lords or the Appeal Court may, upon application made at any time by the accused, extend the time within which an application may be made by him to that House or the Court under subsection (1) above.

(3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and, if leave to appeal is granted, until the appeal is disposed of; and for purposes of this Part of this Act an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it may be made, if it is not made within that time.

Textual Amendments

F166 Word in s. 40(1) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 91(1)(2)(a), 110(1); S.I. 2005/910, art. 3(v)

F167 Words in s. 40(1) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 91(1)(2)(b), 110(1); S.I. 2005/910, art. 3(v)

F168 S. 40(1A) inserted (1.4.2005) by Courts Act 2003 (c. 39), ss. 91(3), 110(1) (as amended (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 9 para. 80(3)(c); S.I. 2009/1604, art. 2(d)); S.I. 2005/910, art. 3(v)

41 Hearing and disposal of appeal. U.K.

(1) An appeal under this Part of this Act shall not be heard and determined by the House of Lords unless there are present not less than three of the persons designated Lords of Appeal by section 5 of the M16 Appellate Jurisdiction Act 1876.

(2) Any order of the House of Lords which provides for the hearing of applications for leave to appeal by a committee constituted in accordance with section 5 of the said Act of 1876 may direct that the decision of that committee shall be taken on behalf of the House.

(3) For the purpose of disposing of an appeal under this Part of this Act, the House of Lords may exercise any powers of the Appeal Court or may remit the case to the Court.

Modifications etc. (not altering text)

C26 S. 41(1) applied by 1955 c. 18, s. 113C(4) (as inserted (28.2.2007) by Armed Forces Act 2001 (c. 19), ss. 21(1), 39(2); S.I. 2007/662, art. 2)

C27 S. 41(1) applied by 1955 c. 19, s. 113C(4) (as inserted (28.2.2007) by Armed Forces Act 2001 (c. 19), ss. 21(1), 39(2); S.I. 2007/662, art. 2)

C28 S. 41(1) applied by 1957 c. 53, s. 71AC(4) (as inserted (28.2.2007) by Armed Forces Act 2001 (c. 19), ss. 21(2), 39(2); S.I. 2007/662, art. 2)

Marginal Citations

M16 1876 c. 59.

42 Bail. U.K.

(1) When a person F169 ... [F170 , other than a person appealing or applying for leave to appeal from a decision on an appeal under the Courts-Martial (Prosecution Appeals) Order 2006,] appeals, or applies for leave to appeal, to the House of Lords from a decision of the Appeal Court, the Court shall have power to grant him bail pending the appeal.

F171 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F169 Words in s. 42(1) repealed (25.8.2006) by Armed Forces Act 2001 (c. 19), ss. 30(7)(a), 39(2), Sch. 7 Pt. 7; S.I. 2006/2309, art. 2

F170 Words in s. 42(1) inserted (5.7.2006) by The Courts-Martial (Prosecution Appeals) Order 2006 (S.I. 2006/1786), arts. 1(1), 9(3) (with art. 1(2))

F171 S. 42(2) repealed (25.8.2006) by Armed Forces Act 2001 (c. 19), ss. 30(7)(b), 39(2), Sch. 7 Pt. 7; S.I. 2006/2309, art. 2

43 Detention of accused. U.K.

(1) [F172 Where the accused would, but for the decision of the Appeal Court, be liable to be detained, and immediately after that decision the Defence Council are granted, or give notice that they intend to apply for, leave to appeal, the Appeal Court may make an order providing for the detention of the accused or directing that he shall not be released except on bail (which may, in the case of a person to whom section 42 of this Act applies, be granted as under that section) so long as any appeal to the House of Lords is pending.]

[F172 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.]

(2) An order under this section shall (unless the appeal has been previously disposed of) cease to have effect at the expiration of the period for which the accused would have been liable to be detained but for the decision of the Appeal Court.

(3) An order made under this section for the detention of a person who, but for the decision of the Appeal Court, would be liable to be detained in pursuance of an order or direction under United Kingdom mental health legislation shall be an order authorising his continued detention in pursuance of that order or direction; and the relevant provisions of that legislation with respect to persons liable to be detained thereunder (including provisions as to the renewal of authority for detention and the removal or discharge of patients) shall apply accordingly.

[F173 (3A) The relevant provisions of the Mental Health Act 1983 with respect to community treatment orders (within the meaning of that Act) shall also apply for the purposes of subsection (3).]

(4) The legislation referred to in subsection (3) above is [F174 Part III of the Mental Health Act 1983] the [F175 Mental Health (Care and Treatment) (Scotland) Act 2003] and the Mental Health [F176 (Northern Ireland) Order 1986].

(5) Where the Appeal Court has power to make an order under this section, and either no such order is made or the accused is released or discharged by virtue of subsection (2) or (3) above before the appeal is disposed of, the accused shall not be liable to be again detained as a result of the decision of the House of Lords on the appeal.

Textual Amendments

F172 S. 43(1)-(1B) substituted for s. 43(1) (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 43(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F173 S. 43(3A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), s. 56(1), Sch. 4 para. 3(3); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F174 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(a)

F175 Words in s. 43(4) substituted (24.6.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 43(b); S.I. 2008/1650, art. 4(a)

F176 Words substituted by S.I. 1986/596, art. 6(a)

[F177 43A Continuation of community treatment order U.K.

(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 recall; 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.

(2) For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.

(3) An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as any appeal to the Supreme Court is pending.

(4) Where the Appeal Court makes an order under this section, the relevant provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.

(5) An order under this section shall (unless the appeal has been previously disposed of) cease to have effect at the end of the period for which the accused would, but for the decision of the Appeal Court, have been—

(a) liable to recall; or

(b) where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.

(6) Where the Appeal Court has power to make an order under this section and either no such order is made or the accused is discharged by virtue of subsection (4) or (5) above before the appeal is disposed of, the accused shall not be liable to be again detained as a result of the decision of the Supreme Court on the appeal.]

Textual Amendments

F177 S. 43A inserted (3.11.2008) by Mental Health Act 2007 (c. 12), s. 56(1), Sch. 4 para. 3(4); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

44 Presence of accused at hearing. U.K.

Where the accused is detained pending an appeal from the Appeal Court to the House of Lords, he shall not be entitled to be present on the hearing of the appeal or of any proceedings preliminary or incidental thereto unless an order of the House of Lords authorises him to be present, or that House or the Appeal Court give him leave to be present.

45 Effect of appeal on sentence. U.K.

(1) Subject to this section, any sentence passed on an appeal from the Appeal Court to the House of Lords in substitution for another sentence shall, unless the House of Lords or the Appeal Court otherwise direct, begin to run from the time when that other sentence would have begun to run.

(2) Where under this Part of this Act a person subject to a sentence is [F178 granted]bail pending an appeal, the time during which he is [F178 released on bail]shall be disregarded in computing the term of his sentence.

Textual Amendments

F178 Words substituted by Bail Act 1976 (c. 63, SIF 39:1), s. 12, Sch. 2 para. 46

46 Restitution of property. U.K.

[F179 (1) Where the operation of an order for the restitution of property, being an order made under—

• section 76 of the M17 Naval Discipline Act;

• section 138 of the M18 Army Act; or

• section 138 of the M19 Air Force Act,

(which sections apply when persons are convicted by court-martial of theft or other offences against property), is suspended until the determination of an appeal to the Appeal Court, the following subsections apply.

(2) If the conviction [F180 or, in the case of an appeal against sentence, the order]is not quashed on appeal, the operation of the order shall continue to be suspended—

(a) in any case, until the expiration of the time within which an application for leave to appeal to the House of Lords may be made (disregarding any extension of time which may be granted under section 40 of this Act); and

(b) if such an application is made within that time, so long as the appeal to the House of Lords is pending.

(3) Where the operation of an order is suspended under this section,—

(a) the order shall not take effect if the conviction [F180 or, in the case of an appeal against sentence, the order] is quashed on appeal to the House of Lords;

(b) such steps shall be taken for the safe custody of the property in question during the period during which the operation of the order is suspended as may be prescribed.

(4) Where by reason of the quashing by the Appeal Court of a person’s conviction an order to which subsection (1) of this section applies does not take effect and on appeal to the House of Lords the conviction is restored by the House, the House may make any order for the restitution of property which could be made on his conviction by the court-martial which convicted him or, in the case of an appeal relating to a conviction under the M20 Naval Discipline Act, by the Defence Council.]

Textual Amendments

F179 S. 46 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 44, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F180 Words in s. 46(2)(3)(a) inserted (1.4.1997 with savings) by 1996 c. 46, s. 17(5); S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M17 1957 c. 53.

M18 1955 c. 18.

M19 1955 c. 19.

M20 1957 c. 53.

47 Costs. U.K.

(1) Where the Appeal Court or the House of Lords dismiss an application for leave to appeal to that House and the application was made by the [F181 Secretary of State] [F181 Director of Service Prosecutions], the Court or the House may direct the payment by the Secretary of State of such sums as appear to the Court or the House to be reasonably sufficient to compensate the accused for any expenses properly incurred by him in resisting the application.

(2) Where the Appeal Court or the House of Lords dismiss an application for leave to appeal to that House and the application was made by the accused, the Court or the House may make the like order as may be made by the Court under section 32(1) of this Act where they dismiss an application for leave to appeal to the Court; and any order made under this subsection may be enforced in the manner described in section 32(2) of this Act.

(3) [F182 On determining an appeal from the Appeal Court], the House of Lords may, if they think fit, direct the payment by the Secretary of State of such sums as appear to the House to be reasonably sufficient to compensate the accused for any expenses properly incurred by him in the [F183 case up to and including the appeal, that is to say—

(a) in the appeal to the House of Lords;

(b) in the prosecution of his appeal to the Appeal Court (including any proceedings preliminary or incidental thereto); and

(c) in carrying on his defence before the court-martial by which he was convicted or found not guilty by reason of insanity or unfit to stand his trial, or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the court-martial by which he was convicted or so found, as the case may be.]

[F183 proceedings (in the Supreme Court and below).]

(4) Except as provided by the foregoing provisions of this section, no costs shall be allowed on the hearing or determination of an appeal from the Appeal Court to the House of Lords, or of any proceedings preliminary or incidental to such an appeal.

Textual Amendments

F181 Words in s. 47(1) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 45(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F182 Words substituted by Administration of Justice Act 1977 (c. 38, SIF 37), s. 5(4)

F183 Words in s. 47(3) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 45(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

48 Powers under Part III which are exercisable by single judge. U.K.

The following powers of the Appeal Court under this Part of this Act, that is to say the power—

(a) to extend the time for making an application for leave to appeal;

(b) to make an order for or in relation to bail; and

(c) to give leave to be present at the hearing of any proceedings preliminary or incidental to an appeal,

may be exercised by any judge of the Court; but where the judge refuses an application to exercise any of the said powers, the applicant shall be entitled to have the application determined by the Appeal Court.

[F184 48A Appeals on behalf of deceased persons. U.K.

(1) Where a person has died—

(a) any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Appeal Court; and

(b) where any relevant appeal was begun by him while he was alive or is begun in relation to his case by virtue of paragraph (a) above [F185 or by a reference by the Criminal Cases Review Commission], any further step which might have been taken by him in connection with the appeal if he were alive may be taken by a person so approved.

(2) In this section “relevant appeal” means—

(a) an appeal under section 8, 21 or 24 of this Act; or

(b) an appeal under section 39 of this Act from any decision of the Appeal Court on an appeal under any of those sections.

(3) Approval for the purposes of this section may only be given to—

(a) the [F186 widow, widower or surviving civil partner] of the dead person;

(b) a personal representative of the dead person; or

(c) any other person appearing to the [F187 Court of Appeal] [F187 Appeal Court] to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of a relevant appeal relating to him.

(4) [F188 Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission,] an application for such approval may not be made after the end of the period of one year beginning with the date of death.

(5) Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.

(6) The power of the Appeal Court to approve a person under this section may be exercised by any judge of the Appeal Court in the same manner as by the Court and subject to the same provisions; but if the judge refuses the application, the applicant shall be entitled to have the application determined by the Appeal Court.

(7) In subsection (3)(b) above “personal representative” means—

(a) for England and Wales, a person who is a personal representative within the meaning of section 55(1)(xi) of the M21 Administration of Estates Act 1925;

(b) for Scotland, an executor confirmed to the estate of the dead person; or

(c) for Northern Ireland, a person who is one of the personal representatives within the meaning of the M22 Administration of Estates Act (Northern Ireland) 1955.]

Textual Amendments

F184 S. 48A inserted (1.10.1996) by 1996 c. 46, s. 19; S.I. 1996/2474, art. 2(with art. 3)

F185 Words in s. 48A(1)(b) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 46(2); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F186 Words in s. 48A(3)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(8)(a), Sch. 26 para. 33; S.I. 2005/3175, art. 2(1), Sch. 1

F187 Words in s. 48A(3)(c) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 46(3); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F188 Words in s. 48A(4) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 46(4); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

M21 1925 c.23

M22 1955 c. 24(N.I.).

Part IV U.K. Miscellaneous and General

49 Rules of Court. U.K.

(1) Rules of court made [F189 in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005] may provide for regulating the procedure and practice to be followed in the Appeal Court and for any other matters which by this Act are expressed to be subjects for rules of court.

(2) Rules of court made for the purposes of any provision of this Act may make different provision in relation to different classes of cases and may provide for any incidental or supplementary matters for which it appears to the [F190 person making the rules] to be necessary or expedient for the purposes of that provision to provide.

F191 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F191 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F189 Words in s. 49(1) substituted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 1 para. 9(2); S.I. 2006/1014, art. 2(a), Sch. 1 para. 7

F190 Words in s. 49(2) substituted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 1 para. 9(3); S.I. 2006/1014, art. 2(a), Sch. 1 para. 7

F191 S. 49(3)(4) repealed (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 1 para. 9(4), Sch. 18 Pt. 1; S.I. 2006/1014, art. 2(a), Sch. 1 paras. 730(a)

50 Duties of registrar with respect to appeals etc. U.K.

(1) The registrar shall take all necessary steps for obtaining the determination of an appeal or application under this Act, and shall obtain and lay before the Appeal Court in proper form all documents, exhibits and other things relating to the proceedings in the [F192 court-martial by which the appellant or applicant was tried] [F192 Court Martial] which appear necessary for the proper determination of the appeal or application.

(2) The registrar shall furnish the necessary forms and instructions relating to applications for leave to appeal under this Act to any person who demands them, to persons in charge of places where persons sentenced by [F193 court-martial] [F193 the Court Martial] may lawfully be confined for the purpose of serving their sentences and to such other persons as he thinks fit.

(3) Every person in charge of such a place as is referred to in subsection (2) above shall cause the said forms and instructions to be placed at the disposal of persons confined in that place who wish to apply for leave to appeal to the Appeal Court, or from that Court to the House of Lords.

Textual Amendments

F192 Words in s. 50(1) substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 47(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F193 Words in s. 50(2) substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 47(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F194 U.K.

Textual Amendments

F194 S. 51 repealed (1.10.1968) on coming into force of Pt. IV of Criminal Justice Act 1967 (c. 80) by Courts-Martial (Appeals) Act 1968 (c. 20), s. 51(8)

52 Removal of prisoners. U.K.

Rules or regulations made under—

[F195 (a) section 79 or 82 of the M23 Naval Discipline Act;

(b) section 121 or 122 of the M24 Army Act;

(c) section 121 or 122 of the M25 Air Force Act;]

[F195 (a) section 300 of the 2006 Act;]

(d) section 47 of the M26 Prison Act 1952;

[X1 (e) section 35 of the M27 Prisons (Scotland) Act 1952; or]

[F196 (e) section 39 of the Prisons (Scotland) Act 1989; or]

(f) section 13 of the M28 Prison Act (Northern Ireland) 1953

may provide in what manner an appellant, when in custody, is to be taken to, kept in custody at, and brought back from any place at which he is entitled to be present for purposes of Part II or Part III of this Act or any place to which the Appeal Court or a judge of it may order him to be taken for the purpose of any proceedings of the Court.

Editorial Information

X1 S. 52(e) beginning “section 39" substituted (S.) for S. 52(e) beginning “section 35" by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 10

Textual Amendments

F195 S. 52(a) substituted for s. 52(a)-(c) (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 48; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F196 S. 52(e) beginning “section 39" substituted (S.) for S. 52(e) beginning “section 35" by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 10

Marginal Citations

M23 1957 c. 53.

M24 1955 c. 18.

M25 1955 c. 19.

M26 1952 c. 52.

M27 1952 c. 61.

M28 1953 c. 18 (N.I.)

F197 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F197 S. 53 repealed (1.4.1997) by 1996 c. 46, s. 35(2), SCh. 7 Pt. III; S.I. 1997/304, art. 2, Sch. 1

54 Saving for prerogative. U.K.

(1) Nothing in this Act is to be taken as affecting any right of Her Majesty, by virtue of Her Royal prerogative or otherwise, to quash a conviction by [F198 court-martial] [F198 the Court Martial], so far as regards the exercise thereof at a time before whichever of the following two events first occurs—

(a) the receipt by the registrar of an application for leave to appeal under Part II of this Act against the conviction; or

(b) the receipt by him of particulars of such an application furnished in pursuance of section 9 of this Act.

(2) Nothing in this Act is to be taken as affecting Her Majesty’s Royal prerogative of mercy.

Textual Amendments

F198 Words in s. 54(1) substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 49; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F199 55 Modification of provisions in Parts II and III for capital cases. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F199 S. 55 repealed (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 131(a), Sch. 10; S.I. 2005/910, art. 3(y)

56 [F200 Modification for protected prisoners of war][F200 Modifications for protected prisoners of war] U.K.

[F200 Schedule 3 to this Act has effect so as to modify certain provisions of this Act in relation to protected prisoners of war within the meaning of the M29 Geneva Conventions Act 1957; and any provision of this Act which is referred to in that Schedule and modified or restricted thereby shall have effect subject to the Schedule.]

[F200 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.]

Textual Amendments

F200 S. 56 substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 50; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Marginal Citations

M29 1957 c. 52.

57 Interpretation. U.K.

(1) In this Act, unless the context otherwise requires,—

• [F201 “the 2006 Act” means the Armed Forces Act 2006;]

• [F202 “the Air Force Act” means the M30 Air Force Act 1955;]

• [F202 “air force court-martial” means a court-martial under the Air Force Act;]

• “appellant” includes a person who [F203 has been tried by court-martial and] wishes to appeal under Part II of this Act to the Appeal Court;

• [F202 “the Army Act” means the M31 Army Act 1955;]

• [F202 “army court-martial” means a court-martial under the Army Act;]

• [F202 “court-martial” means a naval, army or air force court-martial;]

• [F204 “Director of Service Prosecutions” has the meaning given by section 374 of the 2006 Act;]

• [F202 [F205 “duly approved” means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act );]]

• “enactment” includes an enactment of the Parliament of Northern Ireland;

• [F205 “hospital order” has the meaning given in section 37 of the Mental Health Act 1983;]

• [F205 “interim hospital order” has the meaning given in section 38 of that Act;]

• [F202 “the Judge Advocate General” means the Advocate General or Judge Martial of all Her Majesty’s regular, auxiliary and reserve land and air forces;]

• [F202 [F205 “judicial officer” has the same meaning as in the relevant Service Act;]]

• “the Lord Chief Justice” means the Lord Chief Justice of England;

• [F202 “the Naval Discipline Act” means the M32 Naval Discipline Act 1957;]

• [F202 “naval court-martial” means a court-martial under the Naval Discipline Act F206 . . .;]

• “prescribed” means prescribed by rules of court; F207 . . .

• “the registrar” means the registrar of the Appeal Court. [F208 ; and

• [F202 [F205 “restriction order” has the meaning given to it by section 41 of the Mental Health Act 1983;]]

• “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender.]

• [F202 [F205 “supervision order” means an order which requires the person in respect of whom it is made to be under the supervision of another person for a period specified in the order of not more than two years.]]

(2) [F209 Where in connection with any proceedings or powers of the Appeal Court on appeal a provision of this Act refers to “the relevant Service Act", it is to be taken as referring to the Act under which the appellant was tried by court-martial, that is to say the M33 Naval Discipline M34 Act, the Army Act or the M35 Air Force M36 Act, as the case may be.]

[F210 (2A) [F209 For the purposes of the provisions of sections 16 and 23 of this Act which permit the Appeal Court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (2B) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the Appeal Court may require the signatory of any such report to be called to give oral evidence.]

(2B) [F209 Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then—

(a) if the appellant is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the appellant is not so represented, the substance of the report shall be disclosed to him; and

(c) the appellant may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the appellant or on his behalf.]]

(3) In Part III of this Act “the accused” means, in relation to an appeal from the Appeal Court to the House of Lords, the person who was [F211 the accused in the court-martial proceedings from which the appeal lay to the Appeal Court.] [F211 the appellant in the Appeal Court.]

(4) Any reference in this Act to another enactment is a reference thereto as amended by or under any other enactment, including this Act.

(5) Any reference in this Act to an enactment of the Parliament of Northern Ireland includes a reference to an enactment corresponding thereto and for the time being in force in Northern Ireland.

Textual Amendments

F201 Words in s. 57(1) inserted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 51(2)(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F202 Words in s. 57(1) repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 51(2)(b), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F203 Words in s. 57(1) repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 51(2)(c), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F204 Words in s. 57(1) inserted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 51(2)(d); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F205 Words in s. 57(1) inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 14(2) (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F206 Words in the definition of “naval court martial" in s. 57(1) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. I; S.I. 2002/345, art. 2 (subject to art. 3)

F207 Word in s. 57(1) repealed (1.4.1997) by 1996 c. 46, s. 35(2), SCh. 7 Pt. III; S.I. 1997/304, art. 2, Sch. 1

F208 Word and definition inserted (1.4.1997 with savings) by 1996 c. 46, s. 17(7); S.I. 1997/304, art. 2 (with art. 3)

F209 S. 57(2)-(2B) repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 51(3), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F210 S. 57(2A)(2B) inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 14(3) (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F211 Words in s. 57(3) substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 51(4); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Marginal Citations

M30 1955 c. 19.

M31 1955 c. 18.

M32 1957 c. 53.

M33 1957 c. 53.

M34 1957 c. 53.

M35 1955 c. 18.

M36 1955 c. 19.

58 Consequential amendments of enactments. U.K.

[F212 The enactments specified in Schedule 4 to this Act shall be amended as shown in that Schedule.]

Textual Amendments

F212 S. 58 repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 52, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Modifications etc. (not altering text)

C29 The text of ss. 58, 60, Sch. 6 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any repeals or amendments which may have been made prior to 1.2.1991

59 Transitional provisions. U.K.

The transitional provisions set out in Schedule 5 to this Act shall have effect.

60 Repeals. U.K.

The enactments specified in the second column of Schedule 6 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

Modifications etc. (not altering text)

C30 The text of ss. 58, 60, Sch. 6 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any repeals or amendments which may have been made prior to 1.2.1991

61 Short title and commencement. U.K.

(1) This Act may be cited as the [F213 Courts-Martial (Appeals) Act 1968] [F213 Court Martial Appeals Act 1968].

(2) This Act shall come into force on the day appointed under section 106(5) of the M37 Criminal Justice Act 1967 for the coming into force of section 98 of that Act.

Textual Amendments

F213 Words in s. 61(1) substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 53; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Modifications etc. (not altering text)

C31 Section 98 of the Criminal Justice Act 1967 came into force 1.9.1968 by S.I. 1968/325

Marginal Citations

M37 1967 c. 80.

SCHEDULES

Section 20.

[F214 SCHEDULE 1 U.K. Provisions as to Retrial

Textual Amendments

F214 Sch. 1 substituted (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 54; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Part I U.K. Navy

[F215 1 U.K. Evidence given at the retrial of any person under section 19 of this Act shall be given orally if it was given orally at the original trial, unless—

(a) all the 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).]

Textual Amendments

F215 Sch. 1 para. 1 substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 7 para. 5; S.I. 2005/950, art. 2(1), Sch. 1 para. 31 (with Sch. 2) (as explained (29.7.2005) by S.I. 2005/2122, art. 2; and as amended: (14.7.2008) by 2008 c. 4, Sch. 26 para. 78, Sch. 28 Pt. 2; S.I. 2008/1586, Sch. 1 paras. 48(s), 50(2)(d); (30.11.2009) by S.I. 2009/3111, art. 2; (3.12.2012) by S.I. 2012/2905, art. 4; (3.12.2012) by 2012 c. 10, Sch. 14 para. 17; S.I. 2012/2906, art. 2(l))

2 U.K. Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the M38 Naval Discipline Act, not being a sentence of greater severity than that passed on the original conviction.

Marginal Citations

M38 1957 c. 53.

Part II U.K. Army

[F216 3 U.K. Evidence given at the retrial of any person under section 19 of this Act shall be given orally if it was given orally at the original trial, unless—

(a) all the 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).]

Textual Amendments

F216 Sch. 1 para. 3 substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 7 para. 6; S.I. 2005/950, art. 2(1), Sch. 1 para. 31 (with Sch. 2) (as explained (29.7.2005) by S.I. 2005/2122, art. 2; and as amended: (14.7.2008) by 2008 c. 4, Sch. 26 para. 78, Sch. 28 Pt. 2; S.I. 2008/1586, Sch. 1 paras. 48(s), 50(2)(d); (30.11.2009) by S.I. 2009/3111, art. 2; (3.12.2012) by S.I. 2012/2905, art. 4; (3.12.2012) by 2012 c. 10, Sch. 14 para. 17; S.I. 2012/2906, art. 2(l))

4 U.K. Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the M39 Army Act, not being a sentence of greater severity than that passed on the original conviction.

Marginal Citations

M39 1955 c. 18.

Part III U.K. Air Force

[F217 5 U.K. Evidence given at the retrial of any person under section 19 of this Act shall be given orally if it was given orally at the original trial, unless—

(a) all the 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).]

Textual Amendments

F217 Sch. 1 para. 5 substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 7 para. 7; S.I. 2005/950, art. 2(1), Sch. 1 para. 31 (with Sch. 2) (as explained (29.7.2005) by S.I. 2005/2122, art. 2; and as amended: (14.7.2008) by 2008 c. 4, Sch. 26 para. 78, Sch. 28 Pt. 2; S.I. 2008/1586, Sch. 1 paras. 48(s), 50(2)(d); (30.11.2009) by S.I. 2009/3111, art. 2; (3.12.2012) by S.I. 2012/2905, art. 4; (3.12.2012) by 2012 c. 10, Sch. 14 para. 17; S.I. 2012/2906, art. 2(l))

6 U.K. Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the M40 Air Force Act, not being a sentence of greater severity than that passed on the original conviction.

Marginal Citations

M40 1955 c. 19.

Part IV U.K. Provision applying to all three Services

7 U.K. Where a person authorised under section 19 of this Act to be retried is convicted on retrial and sentenced to imprisonment or detention, there shall be taken into account in calculating the period for which he is liable to imprisonment or to be detained in pursuance of that sentence—

(a) any time before the original conviction was quashed which would have been taken into account in calculating the period for which he would have been liable to be imprisoned or detained in pursuance of a sentence of imprisonment or detention imposed at the original trial; and

(b) any time after the quashing of his original conviction which he has spent under close arrest awaiting retrial.]

Section 20

[F214 SCHEDULE 1 U.K. Provisions as to Retrial

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

2 U.K. Evidence 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).

3 U.K. If 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.

4 U.K. In 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.]

Section 55.

F218 SCHEDULE 2 U.K. Procedural and other Modifications for Capital Cases

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F218 Sch. 2 repealed (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 131(b), Sch. 10; S.I. 2005/910, art. 3(y)

Section 56.

SCHEDULE 3 U.K. Modifications in Relation to Prisoners of War

[F219 1 U.K. In this Schedule “protected prisoner of war”[F220 has the same meaning as in section 7(1) of] the M41 Geneva Conventions Act 1957; and “Royal Warrant” means a Royal Warrant governing the maintenance of discipline among prisoners of war.

Textual Amendments

F219 Sch. 3 repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 55, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F220 Words in Sch. 3 para. 1 substituted (1.10.1996) by 1996 c. 46, s. 35(1), Sch. 6 para. 13; S.I. 1996/2474, art. 2 (with art. 3)

Marginal Citations

M41 1957 c. 52.

2 U.K. In relation to a protected prisoner of war, this Act shall have effect as if the expression “army court-martial” included a prisoner of war court-martial constituted under a Royal Warrant.

Textual Amendments

F219 Sch. 3 repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 55, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

3 U.K. In relation to a protected prisoner of war this Act shall have effect as if a reference to a Royal Warrant were substituted—

(a) for any reference in section 13, 14[F221 , 14A, 15 or 25A] to the relevant Service Act;

F222 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) for the reference in section 17(2)(b) to the M42 Army Act; and

(d) for the reference in section 37(2) to the enactment relating to the revision of the finding or sentence of an army court-martial.

Textual Amendments

F219 Sch. 3 repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 55, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F221 Words in Sch. 3 para. 3(a) substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 15(2)(a) (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

F222 Sch. 3 para. 3(b) repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 15(2)(b), Sch. 11 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)(i)

Marginal Citations

M42 1955 c. 18.

[F223 3A U.K. In relation to a protected prisoner of war, sections 16 and 23 of this Act shall each have effect as if the following subsection were substituted for subsection (4)—

“(4) The provisions of a Royal Warrant shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.”]

Textual Amendments

F219 Sch. 3 repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 55, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

F223 Sch. 3 para. 3A inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 3 para. 15(3) (with Sch. 12 para. 8); S.I. 2005/579, art. 3(b)

4 U.K. Paragraph 3(1) of Schedule 2 to this Act shall not have effect in relation to a protected prisoner of war.]

Textual Amendments

F219 Sch. 3 repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 55, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Section 58.

SCHEDULE 4 U.K. Consequential Amendment of Enactments

Modifications etc. (not altering text)

C32 The text of Sch. 4 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and, except as specified, does not reflect any repeals or amendments which may have been made prior to 1.2.1991

[F224 The Army Act 1955 (c.18) U.K.

Textual Amendments

F224 Sch. 4 repealed (28.3.2009 for specified purposes) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 56, Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

Section 113 U.K. In subsection (3), for the words “paragraph (b) of subsection (3) of section 4 of the words M43 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 9(4)(b)of the M44 courts-martial (Appeals) Act 1968".

After section 113 there shall be inserted the following section—

“ Power of reviewing authority to authorise retrial. U.K.

113A (1) The following provisions of the courts-martial (Appeals) Act 1968, that is to say,—

• section 19,

• section 20, and

• Parts II and IV of Schedule 1,

(power of courts-martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by Her Majesty or the Defence Council under section 113 of this Act of the findings of a court-martial, as they apply in relation to an appeal to the courts-martial Appeal Court.

(2)

Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents”.

Marginal Citations

M43 1951 c.46

M44 1968 c.20

Section 118 U.K. In subsection (1), for the words “subsection (7) of section 4 of the M45 court-martial (Appeals) Act 1951" there shall be substituted the words “section 11(2) of the M46 courts-martial (Appeals) Act 1968".

Marginal Citations

M45 1951 c.46

M46 1968 c.20

Section 138 U.K. In subsction (9), for the words (in paragraph(a)) “Part I of the M47 courts-martial (Appeals) Act 1951" there shall be substituted the words “Part II of the M48 courts-martial (Appeals) Act1968"; and for the words (in paragraph (e)) “the said Act of 1951" there shall be substituted the words “Part II of the said Act of 1968".

Marginal Citations

M47 1951 c.46

M48 1968 c.20

The Air Force Act 1955 (c. 19) U.K.

Section 113 U.K. In subsecton (3), for the words “paragraph (b) of subsection (3) of section 4 of the M49 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 9(4)(b) of the M50 courts-martial (Appeals) Act 1968".

After section 113 there shall be inserted the following section—

“ Power of reviewing authority to authorise retrial. U.K.

113A (1) The following provisions of the courts-martial (Appeals) Act 1968, that is to say—

• section 19,

• section 20, and

• Parts III and IV of Schedule 1,

(power of courts-martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by Her Majesty or the Defence Council under secton 113 of this Act of the findings of a court-martial, as they apply in relation to an appeal to the courts-martial Appeal Court.

(2) Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.”

Marginal Citations

M49 1951 c.46

M50 1968 c.20

Section 118 U.K. In subsection (1), for the words “Subsection (7) of section 4 of the M51 Courts-Martial (Appeals) Act 1951"there shall be substituted the words “section 11(2) of the M52 courts-martial (Appeals) Act 1968".

Marginal Citations

M51 1951 c.46

M52 1968 c.20

Section 138 U.K. In subsection (9), for the words (in paragraph(a)) “Part I of the M53 courts-martial (Appeals) Act 1951"there shall be substituted the words “Part II of the M54 courts-martial (Appeals) Act 1968"; and for the words (in paragraph (e)) “the said Act of 1951" there shall be substituted the words “Part II of the said Act of 1968".

Marginal Citations

M53 1951 c.46

M54 1968 c.20

The Naval Discipline Act 1957 (c.53) U.K.

section 70 U.K. In subsection (3),for the words “paragraph (b) of subsection (3) of section 4 of the M55 courts-martial (Appeals ) Act 1951" there shall be substituted the words “section 9(4)(b) of the M56 courts-martial (Appeals) Act 1968".

Marginal Citations

M55 1951 c.46

M56 1968 c.20

Section 71 U.K. At the end of the section there shall be insrted the following section—

“ Power to authorise retrial. U.K.

71A (1) The following provisions of the courts-martial (Appeals) Act 1968, that is to say,—

• sectin 19,

• section 20, and

• Parts I and IV of Schedule 1,

(power of courts-martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modificatons in relation to the review by the Defence Council under section 70 of this Act of the findings of a court-martial as they apply in relation to an appeal to the courts-martial Appeal Court.

(2) Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be.”

section 77 U.K. In subsection (1), for the words (in paragraph (a)) “Part I of the M57 courts-martial (Appeals) Act 1951" there shall be substituted the words “Part II of the M58 courts-martial (Appeals) Act 1968".

Marginal Citations

M57 1951 c.46

M58 1968 c.20

In subsection (1), for the words “the said Act of 1951" there shall be substituted the words “Part II of the said Act of 1968".

Section 85 U.K. In subsection (1), for the words “subsection (7) of section 4 of the M59 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 11(2) of the M60 courts-martial (Appeals) Act 1968".

Marginal Citations

M59 1951 c.46

M60 1968 c.20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F225

Textual Amendments

F225 Entry relating to the Mental Health Act 1959 repealed by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F226

Textual Amendments

F226 Entry relating to Mental Health (Scotland) Act 1960 repealed by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(2), Sch. 5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]F227

Textual Amendments

F227 Entry relating to Mental Health Act (Northern Ireland) 1961 repealed by S.I. 1986/596, art. 6(e)

Section 59.

SCHEDULE 5 U.K. Transistional Provisions

1 (1) Any right of appeal subsisting immediately before the commencement of this Act by virtue of an enactment repealed thereby shall after that commencement be treated as subsisting by virtue of the corresponding enactment in this Act. U.K.

(2) Any appeal or application pending before the said commencement under an enactment so repealed may be presented and disposed of in accordance with the provisions of this Act corresponding to those in force immediately before the said commencement and applicable to the appeal or application.

2 (1) In so far as any order, appointment, rule or regulation made, petition presented, direction given or other thing done under an enactment repealed by this Act could have been made, presented, given or done under a corresponding provision of this Act, it shall not be invalidated by the repeal of that enactment but shall have effect as if made, presented, given or done under that corresponding provision. U.K.

(2) Any document referring to an enactment repealed by this Act shall, so far as may be necessary for preserving its effect, be construed as referring, or as including a reference, to the corresponding enactment in this Act.

3 U.K. The mention of particular matters in this Schedule shall not be taken to affect the general application of section 38 of the M61 Interpretation Act 1889 with regard to the effect of repeal

Marginal Citations

M61 1889 c. 63.

Section 60.

SCHEDULE 6 U.K. Repeals

Modifications etc. (not altering text)

C33 The text of ss. 58, 60, Sch. 6 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any repeals or amendments which may have been made prior to 1.2.1991