Courts-Martial (Appeals) Act 1968

Part II U.K. Appeals from Courts-Martial

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 court-martial may, with the leave of the Appeal Court, appeal to the Court [F1 —

(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.]

[F2 (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.]

[F3 (1A) An appeal may also be brought, with the leave of the Appeal Court,—

F4 (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) 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 [F5 or, as the case may require, that his sentence be quashed F6 . . .]; 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) 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) 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.

F7 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 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)

F2 S. 8(1ZA) inserted (E.W.) (18.12.2003) by Criminal Justice Act 2003 (c. 44), ss. 271(2), 336(2)

F3 S. 8(1A) added by Armed Forces Act 1976 (c. 52, SIF 7:1), s. 22(5), Sch. 9 para. 16

F4 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)

F5 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(2)

F6 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)

F7 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)

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.

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

(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.

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 the Judge Advocate of Her Majesty’s Fleet or 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.

Disposal of appeal U.K.

12 Power to quash conviction as [F8 unsafe.] U.K.

[F9 (1) The Appeal Court—

(a) shall allow an appeal against conviction by 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.

Textual Amendments

F8 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)

F9 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)

13 Adjustment of sentence in case of conviction on two or more charges. U.K.

Where—

(a) it appears to the Appeal Court [F10 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.

Textual Amendments

F10 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

14 Substitution of conviction on different charge. U.K.

(1) This section applies where an appellant has been convicted of an offence 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 [F11 on an appeal against conviction] that the court-martial must have been satisfied of facts which proved him guilty of that other offence.

(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding of the 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 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.

Textual Amendments

F11 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

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

(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 [F12 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 [F12 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

F12 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

16 Substitution of finding of insanity or unfitness to plead. U.K.

(1) This section applies in a case where, on an appeal [F13 against conviction], the Appeal Court are of opinion—

(a) that the proper finding would have been a finding 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 a finding that the accused was unfit to stand his trial.

(2) The Appeal Court shall order the appellant to be kept in custody under the relevant Service enactment in like manner as on a finding of not guilty by reason of insanity or a finding of unfitness to stand trial by the court-martial by which the appellant was convicted.

(3) In subsection (2) above, the “relevant Service enactment” means—

• section 63 of the M1 Naval Discipline Act;

• section 116 of the M2 Army Act; or

• section 116 of the M3 Air Force Act,

(being enactments which provide for a person to be kept in custody until the pleasure of Her Majesty is made known), according to whether the appellant was convicted by a naval, army or air force court-martial.

Textual Amendments

F13 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(4)

Marginal Citations

M1 1957 c. 53.

M2 1955 c. 18.

M3 1955 c. 19.

[F14 16A Powers on appeals against sentence. U.K.

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.]

Textual Amendments

F14 S. 16A added by Armed Forces Act 1971 (c. 33), s. 73(3)

17 Term of sentence passed under s. 13, 14 or 15. U.K.

(1) The term of any sentence passed by the Appeal Court under section 13, 14 [F15 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.

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

(a) if passed on an appeal against conviction by a [F16 or the sentence of]a naval court-martial, be deemed, for purposes of the M4 Naval Discipline Act, to be a sentence passed by such a court-martial; and

(b) if passed on an appeal against conviction by [F16 or the sentence of]an army or air force court-martial, be deemed for purposes of the M5 Army Act or the M6 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, F17 . . ..

Textual Amendments

F15 Words substituted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(5)

F16 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(5)

F17 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

M4 1957 c. 53.

M5 1955 c. 18.

M6 1955 c. 19.

[F18 17A Appeals by civilians: application of Service Act provisions. U.K.

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 M7 Army Act 1955, Schedule 5A to the M8 Air Force Act 1955 or Schedule 4A to the M9 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

F18 S. 17A substituted (1.4.1997 with savings) by 1996 c. 46, s. 17(3); S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M7 1955 c. 18.

M8 1955 c. 19.

M9 1957 c. 53.

Retrial U.K.

18 Retrial generally excluded. U.K.

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.

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 court-martial, but shall only exercise this power when F19 . . . 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 the restrictions on retrial imposed by section 134 of the Army Act and section 134 of the M10 Air Force M11 Act.

(3) An appellant shall not be retried under this section for an offence other than—

(a) the offence of which he was convicted by the original 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 at the original court-martial on a charge of the first-mentioned offence; or

(c) any offence charged in the alternative in respect of which the 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; 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.

Textual Amendments

F19 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.

Marginal Citations

M10 1955 c. 18.

M11 1955 c. 19.

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

(1) The limitations imposed by—

• section 52 of the M12 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.

(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.

(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 a direction under United Kingdom mental health legislation, that direction shall continue in force until the relevant time as if his conviction had not been quashed.

(4) The legislation referred to in subsection (3) above is [F20 Part III of the Mental Health Act 1983], [F21 Part VI of the Mental Health (Scotland) Act 1984]and Part III of the Mental Health [F22 (Northern Ireland) Order 1986].

(5) 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 of this Act; and of the four Parts of the Schedule, Part I applies to retrial under the M13 Naval Discipline Act; Part II applies to retrial under the Army Act; Part III applies to retrial under the M14 Air Force M15 Act; and Part IV applies to all three cases.

Textual Amendments

F20 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(a)

F21 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 10

F22 Words substituted by S.I. 1986/596, art. 6(a)

Marginal Citations

M12 1957 c. 53.

M13 1957 c. 53.

M14 1955 c. 18.

M15 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 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; and in relation to any such appeal this Part of this Act, except 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).

(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 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.

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 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 court-martial could have found him guilty), the Court shall substitute for the finding of the 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 court-martial which tried him 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 section 13, 14 or 15 of this Act.

(4) 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.

23 Power to order detention under mental health legislation. U.K.

(1) The following provisions shall have effect in the case of an appeal by a person who, in pursuance of a finding of not guilty by reason of insanity, is detained under—

(a) [F23 section 46 of the Mental Health Act 1983]; or

(b) [F24 section 69 of the Mental Health (Scotland) Act 1984]; or

[F25 (c) Article 52 of the Mental Health (Northern Ireland) Order 1986;]

(which sections relate to orders for a person to be kept in custody during Her Majesty’s pleasure), where the Appeal Court under section 22 of this Act substitute a finding of not guilty.

(2) If the Appeal Court are of opinion—

(a) that the person is suffering from mental disorder (within the meaning of [F26 the Mental Health Act 1983]) of a nature or degree which warrants his [F27 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,

they shall make an order for his continued detention under the said Act [F28 or Order].

(3) An order under subsection (2) above shall be sufficient authority for the person to be detained, and the said Act [F29 or Order]shall apply as if on the date of the order he had been admitted to hospital in pursuance of an application duly made under that Act [F29 or Order](being in England and Wales an application for [F30 admission for assessment]).

Textual Amendments

F23 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(b)

F24 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 11

F25 S. 23(1)(c) substituted by S.I. 1986/596, art. 6(b)

F26 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(b)

F27 Words substituted by Mental Health (Amendment) Act 1982 (c. 51, SIF 85), ss. 65(1), 69(6), Sch. 3 para. 43(a), Sch. 5 para. 1

F28 Words added by S.I. 1986/596, art. 6(c)

F29 Words inserted by S.I. 1986/596, art. 6(d)

F30 Words substituted by Mental Health (Amendment) Act 1982 (c. 51, SIF 85), ss. 65(1), 69(6), Sch. 3 para. 43(b), Sch. 5 para. 1

Prospective

F31 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

F31 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 a court-martial to be unfit to stand his trial may, with the leave of the Appeal Court, appeal to the Court against the finding.

(2) In relation to an appeal under this section, this Part of this Act, except 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).

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

(1) The following provisions of this section apply with respect to an appeal under section 24 of this Act.

(2) Where the question whether the accused was unfit to stand his trial was determined by the court-martial at a time later than on arraignment or, in the case of a naval court-martial, later than on the commencement of the trial, the appeal may be allowed (notwithstanding that the finding was properly come to) if the Appeal Court are of opinion that the case is one in which the court-martial should before that time have come to a finding of not guilty.

(3) If the Appeal Court are of the said opinion, they shall substitute a finding of not guilty (but not a finding of not guilty by reason of insanity) and the appellant shall then not be liable to be tried by a court-martial or by any other court for the offence with which he was charged.

(4) Where the appeal is allowed and the Appeal Court do not substitute a finding of not guilty, the appellant may be tried accordingly for the said offence; and if he is for the time being detained under [F32 the Mental Health Act 1983], the [F33 Mental Health (Scotland) Act 1984]or the Mental Health [F34 (Northern Ireland) Order 1986], the Court may make such order as appears to them necessary or expedient pending any such trial for his continued detention under that Act [F35 or Order].

Textual Amendments

F32 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(c)

F33 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 12

F34 Words substituted by S.I. 1986/596, art. 6(a)

F35 Words added by S.I. 1986/596, art. 6(c)

General procedural provisions U.K.

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

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

27 Presence of appellant at hearing. U.K.

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.

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 at the trial to attend for examination and be examined before the Court, whether or not he was called at the trial; and

[F36 (c) receive any evidence which was not adduced at the trial.]

[F37 (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 at the trial 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 at the trial.]

(3) Subsection (1)(c) above applies to any [F38 evidence of a] witness (including the appellant) who is competent but not compellable F39 . . .

(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

F36 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)

F37 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)

F38 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)

F39 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 trial court. U.K.

(1) The Appeal Court may order the taking of such steps as are requisite to obtain from any member of the court-martial by which the appellant was tried, or the person who officiated as judge advocate at the trial, 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) 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.

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 [F40 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 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.

Textual Amendments

F40 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(6)

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—

[F41 (a) in the same manner as an order for costs made by the criminal division of the Court of Appeal F42 . . .; or]

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

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

F41 S. 32(2)(a) substituted (E.W.) (S.) by Administration of Justice Act 1970 (c. 31), s. 41(7)

F42 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)

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

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.

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.

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

[F43 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

F43 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 court-martial,—

(a) it appears to the Judge Advocate of Her Majesty’s Fleet or the Judge Advocate General that the finding of the 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 court-martial at the trial, to be expedient that the finding of the court-martial should be considered or reconsidered by the Appeal Court,

the Judge Advocate of Her Majesty’s Fleet, 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 [F44 subsection (1) above] shall, for all purposes [F45 other than that of section 32] of this Act, be treated as an appeal by the person convicted against his conviction.

(3) 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.

[F46 (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 a 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

F44 Words substituted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(7)

F45 Words substituted by Administration of Justice Act 1977 (c. 38, SIF 37), s. 5(2)

F46 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)

35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F47 U.K.

Textual Amendments

F47 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 under this Part of this Act, that is to say the power—

(a) 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;

(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; and

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

[F48 and the power to give directions under section 4(4) of the Sexual Offences (Amendment) Act 1976 as adapted by section 5(1)(d) of that Act][F49 or 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 [F50 for the purpose in accordance with section 5 of this Act].

Textual Amendments

F48 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)

F49 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

F50 Words substituted by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(5), 153(4)(d)

[F51 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; and

(b) to order a witness to attend for examination,

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

F51 S. 36A inserted (1.10. 1996 with savings) by 1996 c. 46, s. 18; S.I. 1996/2474, art. 2 (with art. 3)

37 Documents relating to trial to be furnished for appeal. U.K.

(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 F52 . . . and any petition presented by the person tried thereby.

Textual Amendments

F52 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)

[F53 [F54 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 M16 1982.]]

Textual Amendments

F53 S. 37A repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 5

F54 S. 37A inserted by Police and Criminal Evidence Act 1984 (c. 60, SIF 95), s. 119, Sch. 6 para. 34

Marginal Citations

M16 1982 c.48 (39:1).

38 Defence of appeals. U.K.

It shall be the duty of the Defence Council to undertake the defence of any appeal to the Appeal Court under this Part of this Act.