Part IIF5APPEALS FROM THE COURT MARTIAL
General procedural provisions
F626 Presentation, of appellant’s case.
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27F7Right of appellant to be present.
1
An appellant (whether or not in custody) is entitled to be present on the hearing of his appeal.
2
Subsection (1) does not apply to an appellant in custody—
a
where his appeal is on a ground involving only a question of law,
b
on an application by him for leave to appeal, or
c
on any proceedings preliminary or incidental to an appeal,
unless the Appeal Court give him leave to be present.
28 Evidence.
1
F18For the purposes of an appeal or an application for leave to appeal, 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;
F17b
order any witness to attend for examination and be examined before the Court (whether or not he was called in the proceedings from which the appeal lies); and
F151A
The power conferred by subsection (1)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that subsection to—
a
the Appeal Court;
b
the appellant;
c
the respondent.
F22
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 F9in 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 F10in those proceedings.
3
4
F19For the purposes of an appeal or an application for leave to appeal, 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.
F165
In this section, “respondent” includes a person who will be a respondent if leave to appeal is granted.
29 Power to call for report by member of F11the Court Martial.
1
The Appeal Court may order the taking of such steps as are requisite to obtain from any member of the F12court 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.
F132
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29AF14Power to order investigation by Criminal Cases Review Commission
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.
30 Other powers for facilitating disposal of appeal.
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.
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