Courts-Martial (Appeals) Act 1968

SCHEDULES

Section 20.

[F1 SCHEDULE 1 U.K. Provisions as to Retrial

Textual Amendments

F1 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

[F2 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

F2 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 M1 Naval Discipline Act, not being a sentence of greater severity than that passed on the original conviction.

Marginal Citations

M1 1957 c. 53.

Part II U.K. Army

[F3 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

F3 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 M2 Army Act, not being a sentence of greater severity than that passed on the original conviction.

Marginal Citations

M2 1955 c. 18.

Part III U.K. Air Force

[F4 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

F4 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 M3 Air Force Act, not being a sentence of greater severity than that passed on the original conviction.

Marginal Citations

M3 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

[F1 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.

F5 SCHEDULE 2 U.K. Procedural and other Modifications for Capital Cases

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

Textual Amendments

F5 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

[F6 1 U.K. In this Schedule “protected prisoner of war”[F7 has the same meaning as in section 7(1) of] the M4 Geneva Conventions Act 1957; and “Royal Warrant” means a Royal Warrant governing the maintenance of discipline among prisoners of war.

Textual Amendments

F6 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)

F7 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

M4 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

F6 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[F8 , 14A, 15 or 25A] to the relevant Service Act;

F9 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) for the reference in section 17(2)(b) to the M5 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

F6 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)

F8 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)

F9 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

M5 1955 c. 18.

[F10 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

F6 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)

F10 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

F6 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)

C1 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

[F11 The Army Act 1955 (c.18) U.K.

Textual Amendments

F11 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 M6 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 9(4)(b)of the M7 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

M6 1951 c.46

M7 1968 c.20

Section 118 U.K. In subsection (1), for the words “subsection (7) of section 4 of the M8 court-martial (Appeals) Act 1951" there shall be substituted the words “section 11(2) of the M9 courts-martial (Appeals) Act 1968".

Marginal Citations

M8 1951 c.46

M9 1968 c.20

Section 138 U.K. In subsction (9), for the words (in paragraph(a)) “Part I of the M10 courts-martial (Appeals) Act 1951" there shall be substituted the words “Part II of the M11 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

M10 1951 c.46

M11 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 M12 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 9(4)(b) of the M13 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

M12 1951 c.46

M13 1968 c.20

Section 118 U.K. In subsection (1), for the words “Subsection (7) of section 4 of the M14 Courts-Martial (Appeals) Act 1951"there shall be substituted the words “section 11(2) of the M15 courts-martial (Appeals) Act 1968".

Marginal Citations

M14 1951 c.46

M15 1968 c.20

Section 138 U.K. In subsection (9), for the words (in paragraph(a)) “Part I of the M16 courts-martial (Appeals) Act 1951"there shall be substituted the words “Part II of the M17 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

M16 1951 c.46

M17 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 M18 courts-martial (Appeals ) Act 1951" there shall be substituted the words “section 9(4)(b) of the M19 courts-martial (Appeals) Act 1968".

Marginal Citations

M18 1951 c.46

M19 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 M20 courts-martial (Appeals) Act 1951" there shall be substituted the words “Part II of the M21 courts-martial (Appeals) Act 1968".

Marginal Citations

M20 1951 c.46

M21 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 M22 courts-martial (Appeals) Act 1951" there shall be substituted the words “section 11(2) of the M23 courts-martial (Appeals) Act 1968".

Marginal Citations

M22 1951 c.46

M23 1968 c.20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F12

Textual Amendments

F12 Entry relating to the Mental Health Act 1959 repealed by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13

Textual Amendments

F13 Entry relating to Mental Health (Scotland) Act 1960 repealed by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(2), Sch. 5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]F14

Textual Amendments

F14 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 M24 Interpretation Act 1889 with regard to the effect of repeal

Marginal Citations

M24 1889 c. 63.

Section 60.

SCHEDULE 6 U.K. Repeals

Modifications etc. (not altering text)

C2 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