Criminal Justice Act 2003

Section 135

SCHEDULE 7 Hearsay evidence: armed forces

Application to proceedings before service courts

1 Sections 114 to 121, 123, 124, 126, 127 to 129 and 133 and 134, in so far as they are not applied in relation to proceedings before service courts by provision contained in or made under any other Act, have effect in relation to such proceedings (whether in the United Kingdom or elsewhere) as they have effect in relation to criminal proceedings.

2 (1) In their application to such proceedings those sections have effect with the following modifications.

(2) In section 116(2)(c) for “United Kingdom” substitute “country where the court is sitting”.

(3) In section 117 insert after subsection (7)—

“(8) In subsection (4) “criminal proceedings” includes summary proceedings under section 76B of the Army Act 1955, section 76B of the Air Force Act 1955 or section 52D of the Naval Discipline Act 1957; and the definition of “criminal proceedings” in section 134(1) has effect accordingly.”

(4) In section 123(4) for paragraph (a) substitute—

“(a) in the case of proceedings before a court-martial, proceedings held for the determination of the issue must take place before the judge advocate in the absence of the other members of the court;”.

(5) In section 127, for subsection (7) substitute—

“(7) The appropriate rules are those regulating the practice and procedure of service courts.”

(6) In section 132(10), at the end of the definition of “rules of court” insert—

“(d) rules regulating the practice and procedure of service courts.”

(7) In section 134 insert after subsection (1)—

“(1A) In this Part “criminal investigation” includes any investigation which may lead—

(a) to proceedings before a court-martial or Standing Civilian Court, or

(b) to summary proceedings under section 76B of the Army Act 1955, section 76B of the Air Force Act 1955 or section 52D of the Naval Discipline Act 1957.”

3 (1) Section 122 has effect in relation to proceedings before courts-martial (whether in the United Kingdom or elsewhere) with the following modifications.

(2) In subsection (1) for “judge and jury” substitute “court-martial”.

(3) In subsection (2)—

(a) for “jury when they retire to consider their” substitute “court when it retires to consider its”.

(b) for “the court” in paragraph (a) substitute “the judge advocate”;

(c) for “the jury” in paragraph (b) substitute “the court”.

4 (1) Section 125 has effect in relation to proceedings before courts-martial (whether in the United Kingdom or elsewhere) with the following modifications.

(2) In subsection (1)—

(a) for “judge and jury” substitute “court-martial”;

(b) for “the court is satisfied” substitute “the judge advocate is satisfied”;

(c) for the words after paragraph (b) substitute “the judge advocate must either direct the court to acquit the defendant of the offence or, if he considers that there ought to be a retrial, dissolve the court.”

(3) In subsection (2)—

(a) for “jury” substitute “court”;

(b) for “the court is satisfied” substitute “the judge advocate is satisfied”.

(4) In subsection (3)—

(a) for paragraph (a) substitute—

“(a) a court is required to determine under section 115B(2) of the Army Act 1955, section 115B(2) of the Air Force Act 1955 or section 62B(2) of the Naval Discipline Act 1957 whether a person charged with an offence did the act or made the omission charged,”;

(b) for “the court is satisfied” substitute “the judge advocate is satisfied”;

(c) for the words after paragraph (b) substitute “the judge advocate must either direct the court to acquit the defendant of the offence or, if he considers that there ought to be a rehearing, dissolve the court.”

(5) For subsection (4) substitute—

“(4) This section does not prejudice any other power a judge advocate may have to direct a court to acquit a person of an offence or to dissolve a court.”

Amendments

5 For paragraph 1 of Schedule 1 to the Courts-Martial (Appeals) Act 1968 (c. 20) (use at retrial under Naval Discipline Act 1957 of record of evidence given at original trial) substitute—

“1 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).”

6 For paragraph 3 of that Schedule (use at retrial under Army Act 1955 of record of evidence given at original trial) substitute—

“3 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).”

7 For paragraph 5 of that Schedule (use at retrial under Air Force Act 1955 of record of evidence given at original trial) substitute—

“5 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).”

Interpretation

8 In this Schedule, and in any provision of this Part as applied by this Schedule—

• “court-martial” means a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53);

• “service court” means—

  (a)

  a court-martial;

  (b)

  a summary appeal court constituted under section 83ZA of the Army Act 1955, section 83ZA of the Air Force Act 1955 or section 52FF of the Naval Discipline Act 1957;

  (c)

  the Courts-Martial Appeal Court;

  (d)

  a Standing Civilian Court.