Part IIIF29APPEAL FROM COURT MARTIAL APPEAL COURT TO F16Court of Judicature
Words in Act substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 11 para. 6; S.I. 2009/1604, art. 2(d)
39 Right of appeal.
1
An appeal lies to F17the Supreme Court, at the instance of the accused or the F30Director of Service Prosecutions, from any decision of the Appeal Court on an appeal to them under Part II of this Act F38or the Court Martial (Prosecution Appeals) Order 2009, 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 F17the Supreme Court; 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 F18the Appeal Court or F17the Supreme Court, as the case may be, that the point is one which ought to be considered by F17the Supreme Court.
40 Application for leave to appeal.
1
An application to the Appeal Court for leave to appeal to F27the Supreme Court shall be made within the period of F728 days beginning with the F8relevant date ; and an application to F27the Supreme Court for leave shall be made within the period of F728 days beginning with the date on which the application is refused by the Appeal Court.
F61A
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 Appeal Court gives reasons for its decision.
2
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.
41 Hearing and disposal of appeal.
F22C1C2C31
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F222
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C43
For the purpose of disposing of an appeal under this Part of this Act, the F23Supreme Court may exercise any powers of the Appeal Court or may remit the case to the Court.
42 Bail.
1
When a person F11... F10, other than a person appealing or applying for leave to appeal from a decision on an appeal under the F39Court Martial (Prosecution Appeals) Order 2009, appeals, or applies for leave to appeal, to the F19Supreme Court from a decision of the Appeal Court, F19the Appeal Court shall have power to grant him bail pending the appeal.
F122
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43 Detention of accused.
F311
The Appeal Court F41shall make one of the orders specified in subsection (1A) 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
F42The orders specified in this subsection are —
a
b
an order directing that, so long as any appeal to the F16Court of Judicature is pending, the accused is not to be released except on bail.
F43c
an order that the accused be released without bail.
1B
Where an order within subsection (1A)(b) is made, the Appeal Court may grant the accused bail pending the appeal.
F401C
The Appeal Court may make an order within subsection (1A)(c) only if they think that it is in the interests of justice that the accused should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.
2
An order F45within subsection (1A)(a) or (b) 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.
F153A
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
F465
The accused shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—
a
the Appeal Court have made an order within subsection (1A)(c), or
b
the Appeal Court have made an order within subsection (1A)(a) or (b) but the order has ceased to have effect by virtue of subsection (2) or the accused has been released or discharged by virtue of subsection (3).
43AF14Continuation of community treatment order
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 F16Court of Judicature 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 F16Court of Judicature on the appeal.
44 Presence of accused at hearing.
Where the accused is detained pending an appeal from the Appeal Court to F24the Supreme Court, he shall not be entitled to be present on the hearing of the appeal or of any proceedings preliminary or incidental thereto unless F25Supreme Court Rules authorise him to be present, or F26the Supreme Court or the Appeal Court give him leave to be present.
45 Effect of appeal on sentence.
1
2
F3246 Restitution of property.
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47 Costs.
C51
Where the Appeal Court or F21the Supreme Court dismiss an application for leave to appeal to F21the Supreme Court and the application was made by the F33Director of Service Prosecutions, F21the Appeal Court or the Supreme Court may direct the payment by the Secretary of State of such sums as appear to F21the Appeal Court or the Supreme Court 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 F21the Supreme Court dismiss an application for leave to appeal to F21the Supreme Court and the application was made by the accused, F21the Appeal Court or the Supreme Court 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.
C63
F4On determining an appeal from the Appeal Court, F21the Supreme Court 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 F34proceedings (in the F16Court of Judicature 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 F21the Supreme Court, or of any proceedings preliminary or incidental to such an appeal.
48 Powers under Part III which are exercisable by single judge.
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.
48AF5 Appeals on behalf of deceased persons.
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 F35or 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 F9widow, 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 F36Appeal 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
F37Except 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 M1Administration 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 M2Administration of Estates Act (Northern Ireland) 1955.
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