|
| |
|
Naval Discipline Act 1957 (c. 53) |
| |
3 | For section 63 of the Naval Discipline Act 1957 (provisions where accused |
| |
found insane) substitute— |
| |
“Findings of unfitness to stand trial and insanity |
| |
62A | Fitness to stand trial |
| 5 |
(1) | This section applies where on a trial by court-martial of a person the |
| |
question arises (at the instance of the defence or otherwise) whether |
| |
the accused is fit to stand trial. |
| |
(2) | For the purposes of this Act a person is unfit to stand trial if he is |
| |
under a disability such that apart from the Criminal Procedure |
| 10 |
(Insanity) Act 1964 it would constitute a bar to his being tried on |
| |
indictment in England and Wales. |
| |
(3) | If, having regard to the nature of the supposed disability, the judge |
| |
advocate is of opinion that it is expedient to do so and in the interests |
| |
of the accused, he may postpone consideration of the question of |
| 15 |
fitness to stand trial until any time up to the opening of the case for |
| |
| |
(4) | If, before the question of fitness to stand trial falls to be determined, |
| |
the court finds the accused not guilty on the charge or each of the |
| |
charges on which he is being tried, that question shall not be |
| 20 |
| |
(5) | Subject to subsections (3) and (4) above, the question of fitness to |
| |
stand trial shall be determined as soon as it arises. |
| |
(6) | The question of fitness to stand trial shall be determined by the judge |
| |
| 25 |
(7) | A judge advocate shall not make a determination under subsection |
| |
(6) above except on the written or oral evidence of two or more |
| |
registered medical practitioners at least one of whom is duly |
| |
| |
62B | Finding that the accused did the act or made the omission charged |
| 30 |
(1) | This section applies where in accordance with section 62A(6) above |
| |
it is determined by a judge advocate that the accused is unfit to stand |
| |
| |
(2) | The trial shall not proceed or further proceed but it shall be |
| |
| 35 |
(a) | on the evidence (if any) already given in the trial, and |
| |
(b) | on such evidence as may be adduced or further adduced by |
| |
the prosecution, or adduced by a person appointed by the |
| |
judge advocate under this section to put the case for the |
| |
| 40 |
| whether it is satisfied, as respects the charge or each of the charges |
| |
on which the accused was to be or was being tried, that he did the act |
| |
or made the omission charged against him as the offence. |
| |
|
| |
|
| |
|
(3) | If as respects that charge or any of those charges the court is satisfied |
| |
as mentioned in subsection (2) above, it shall make a finding that the |
| |
accused did the act or made the omission charged against him. |
| |
(4) | If as respects that charge or any of those charges the court is not so |
| |
satisfied, the court shall find the accused not guilty as if on the charge |
| 5 |
in question the trial had proceeded to a conclusion. |
| |
(5) | Where the question of fitness to stand trial was determined after |
| |
arraignment of the accused, the determination under subsection (2) |
| |
above shall be made by the court-martial by whom he was being |
| |
| 10 |
| |
(1) | Where, on the trial of a person by court-martial, the court is satisfied, |
| |
as respects the charge or any of the charges on which he is being |
| |
tried, that the accused did the act or made the omission charged |
| |
against him as the offence but that at the time of that act or omission |
| 15 |
he was insane, the court shall find that the accused was not guilty of |
| |
that offence by reason of insanity. |
| |
(2) | No finding under subsection (1) above shall be made except on the |
| |
written or oral evidence of two or more registered medical |
| |
practitioners at least one of whom is duly approved. |
| 20 |
63A | Powers to deal with person unfit to stand trial or not guilty by reason |
| |
| |
(1) | This section applies where, on a trial of a person by a court-martial— |
| |
(a) | the accused is found to be unfit to stand trial and to have |
| |
done the act or made the omission charged against him; or |
| 25 |
(b) | the accused is found not guilty by reason of insanity. |
| |
(2) | The court shall make in respect of the accused— |
| |
(a) | a hospital order (with or without a restriction order); |
| |
(b) | a supervision order; or |
| |
(c) | an order for his absolute discharge. |
| 30 |
| |
(a) | the offence to which the finding relates is an offence the |
| |
sentence for which is fixed by law, and |
| |
(b) | the court has power to make a hospital order, |
| |
| the court shall make a hospital order with a restriction order |
| 35 |
(whether or not it would have power to make a restriction order |
| |
apart from this subsection). |
| |
(4) | The functions of the court under this section shall be exercised by the |
| |
judge advocate (or, where subsection (5) below applies, the judicial |
| |
officer) sitting alone, and sections 56A(3) and 57 above shall not |
| 40 |
| |
(5) | Any function of the court under this section exercisable after an |
| |
adjournment or an appeal shall be exercisable by a judicial officer |
| |
| |
(a) | the court ordering the adjournment, or (as the case may be) |
| 45 |
the Courts-Martial Appeal Court, so orders; or |
| |
|
| |
|
| |
|
(b) | the Judge Advocate of Her Majesty’s Fleet so directs. |
| |
| |
| “hospital order” has the meaning given in section 37 of the |
| |
| |
| “restriction order” has the meaning given to it by section 41 of |
| 5 |
| |
| “supervision order” means an order which requires the person |
| |
in respect of whom it is made (“the supervised person”) to be |
| |
under the supervision of a person (“the supervising officer”) |
| |
for a period specified in the order of not more than two years. |
| 10 |
| 63B Orders under the Mental Health Act |
| |
(1) | In relation to the making of an order by virtue of subsection (2)(a) of |
| |
section 63A above, section 37 (hospital orders etc) of the Mental |
| |
Health Act 1983 (“the 1983 Act”) shall have effect as if— |
| |
(a) | the reference in subsection (1) to a person being convicted |
| 15 |
before the Crown Court included a reference to the case |
| |
where section 63A above applies; |
| |
(b) | the words after “punishable with imprisonment” and before |
| |
“or is convicted” were omitted; and |
| |
(c) | for subsections (4) and (5) there were substituted— |
| 20 |
“(4) | Where an order is made under this section requiring a person to |
| |
be admitted to a hospital (“a hospital order”), it shall be the duty |
| |
of the managers of the hospital specified in the order to admit |
| |
him in accordance with it.” |
| |
(2) | In relation to a case where section 63A above applies but the court |
| 25 |
has not yet made one of the disposals mentioned in subsection (2) of |
| |
| |
(a) | section 35 of the 1983 Act (remand to hospital for report on |
| |
accused’s mental condition) shall have effect with the |
| |
omission of the words after paragraph (b) in subsection (3); |
| 30 |
(b) | section 36 of that Act (remand of accused person to hospital |
| |
for treatment) shall have effect with the omission of the |
| |
words “(other than an offence the sentence for which is fixed |
| |
by law)” in subsection (2); |
| |
(c) | references in sections 35 and 36 of that Act to an accused |
| 35 |
person shall be construed as including a person in whose case |
| |
this subsection applies; and |
| |
(d) | section 38 of that Act (interim hospital orders) shall have |
| |
| |
(i) | the reference in subsection (1) to a person being |
| 40 |
convicted before the Crown Court included a |
| |
reference to the case where section 63A above applies; |
| |
| |
(ii) | the words “(other than an offence the sentence for |
| |
which is fixed by law)” in that subsection were |
| 45 |
| |
(3) | In relation to the making of any order under the 1983 Act by virtue |
| |
of this Act, that Act shall apply— |
| |
|
| |
|
| |
|
(a) | as if references to the Crown Court were references to a court- |
| |
| |
(b) | as if references to an offender were references to a person in |
| |
whose case section 63A above applies (references to an |
| |
offence being construed accordingly); and |
| 5 |
(c) | with such further modifications as may be prescribed. |
| |
(4) | The Secretary of State may by regulations make provision with |
| |
respect to the admission to, detention in, and release from, hospital |
| |
of any person in respect of whom an order is made under the 1983 |
| |
Act by virtue of this Act. |
| 10 |
| Regulations under this subsection may in particular make provision |
| |
for a person in respect of whom such an order has been made to be |
| |
conveyed to, and detained in, a place of safety pending his admission |
| |
| |
| 15 |
(a) | a person is detained in pursuance of a hospital order which |
| |
the court had power to make by virtue of section 63A(1)(a) |
| |
| |
(b) | the court also made a restriction order, and that order has not |
| |
| 20 |
| the Secretary of State, if satisfied after consultation with the |
| |
responsible medical officer that the person can properly be tried, |
| |
may either remit the person for trial before a court-martial or direct |
| |
that he be tried before a civil court. |
| |
| In this subsection “responsible medical officer” means the registered |
| 25 |
medical practitioner in charge of the person’s treatment. |
| |
(6) | The Secretary of State may by regulations make provision |
| |
supplementing subsection (5) above, including in particular— |
| |
(a) | provision for a person in whose case that subsection applies |
| |
to be conveyed to a court or place of detention and to be |
| 30 |
detained in such a place; |
| |
(b) | provision for the hospital order and the restriction order to |
| |
cease to have effect at such time as may be prescribed. |
| |
| |
(1) | The court shall not make an order under section 63A(2)(b) above |
| 35 |
| |
(a) | that, having regard to all the circumstances of the case, the |
| |
making of a supervision order is the most suitable means of |
| |
dealing with the accused; |
| |
(b) | that the supervising officer intended to be specified in the |
| 40 |
order is willing to undertake the supervision; and |
| |
(c) | that arrangements have been made for any treatment which |
| |
(under subsection (2) below) is intended to be specified in the |
| |
| |
(2) | An order under section 63A(2)(b) above may, in accordance with |
| 45 |
regulations under subsection (3) below, require the supervised |
| |
person to submit, during the whole of that period or such part of it |
| |
as may be specified in the order, to treatment by or under the |
| |
direction of a registered medical practitioner. |
| |
|
| |
|
| |
|
(3) | The Secretary of State may— |
| |
(a) | by order direct that the definition of “supervision order” in |
| |
section 63A(6) above shall be amended by substituting, for |
| |
the period for the time being specified there, such period as |
| |
may be specified in the order under this subsection; |
| 5 |
(b) | by regulations make further provision in relation to |
| |
| |
(4) | Regulations under subsection (3) above may in particular make |
| |
| |
(a) | as to the procedure to be followed by a court-martial making |
| 10 |
| |
(b) | as the requirements which may be specified in such an order; |
| |
(c) | as to the descriptions of supervising officer who may be so |
| |
| |
(d) | for treatment to be provided at a place other than the place |
| 15 |
specified in the order in accordance with arrangements made |
| |
by the medical practitioner by whom or under whose |
| |
direction the supervised person is being treated; |
| |
(e) | for the amendment and revocation of any supervision order. |
| |
| 63D Provisions supplementary to sections 62A to 63C |
| 20 |
(1) | In this section and sections 62A to 63C above— |
| |
| “duly approved” means approved for the purposes of section 12 |
| |
of the Mental Health Act 1983 by the Secretary of State as |
| |
having special experience in the diagnosis and treatment of |
| |
mental disorder (within the meaning of that Act); |
| 25 |
| “prescribed” means prescribed by regulations made by the |
| |
| |
(2) | For the purposes of the provisions of sections 62A and 63 of this Act |
| |
which permit a court to act on the written evidence of a registered |
| |
medical practitioner or a registered medical practitioner who is duly |
| 30 |
approved, a report in writing purporting to be signed by a registered |
| |
medical practitioner or a registered medical practitioner who is duly |
| |
approved may, subject to subsection (3) below, be received in |
| |
evidence without proof of the signature of the practitioner and |
| |
without proof that he has the requisite qualifications or is duly |
| 35 |
approved; but the court may require the signatory of any such report |
| |
to be called to give oral evidence. |
| |
(3) | Where, in pursuance of a direction of the court, any such report is |
| |
tendered in evidence otherwise than by or on behalf of the accused, |
| |
| 40 |
(a) | if the accused is represented by counsel or a solicitor, a copy |
| |
of the report shall be given to his counsel or solicitor; |
| |
(b) | if the accused is not so represented, the substance of the |
| |
report shall be disclosed to him; and |
| |
(c) | the accused may require the signatory of the report to be |
| 45 |
called to give oral evidence, and evidence to rebut the |
| |
evidence contained in the report may be called by the accused |
| |
| |
|
| |
|
| |
|
(4) | The power of the Secretary of State to make regulations under |
| |
sections 63A to 63C above, and orders under section 63C(3) above, |
| |
shall be exercisable by statutory instrument which shall be subject to |
| |
annulment in pursuance of a resolution of either House of |
| |
| 5 |
4 | In the proviso to section 56(3) of that Act (court-martial not to be adjourned |
| |
for more than six days), after “except with the consent of the accused and the |
| |
prosecuting authority” insert “, or for the purpose of exercising powers |
| |
under section 63A of this Act,”. |
| |
5 | In section 135(1) of that Act (general provisions as to interpretation) insert at |
| 10 |
| |
| ““hospital order” has the meaning assigned to it by section 63A(6) of |
| |
| |
| ““restriction order” has the meaning assigned to it by section 63A(6) of |
| |
| 15 |
| ““supervision order” has the meaning assigned to it by section 63A(6) |
| |
| |
Courts-Martial (Appeals) Act 1968 (c. 20) |
| |
6 | The Courts-Martial (Appeals) Act 1968 is amended as follows. |
| |
7 | For section 16 substitute— |
| 20 |
“16 | Substitution of finding of insanity or findings of unfitness to stand |
| |
| |
(1) | This section applies where, on an appeal against conviction, the |
| |
Appeal Court, on the written or oral evidence of two or more |
| |
registered medical practitioners at least one of whom is duly |
| 25 |
approved, are of opinion— |
| |
(a) | that the proper finding would have been one of not guilty by |
| |
| |
(b) | that the case is not one where there should have been a |
| |
finding of not guilty, but that there should have been findings |
| 30 |
that the accused was unfit to stand trial and that he did the |
| |
act or made the omission charged against him. |
| |
(2) | The Appeal Court shall make in respect of the appellant— |
| |
(a) | a hospital order (with or without a restriction order); |
| |
(b) | a supervision order; or |
| 35 |
(c) | an order for his absolute discharge. |
| |
| |
(a) | the offence to which the appeal relates is an offence the |
| |
sentence for which is fixed by law, and |
| |
(b) | the Appeal Court have power to make a hospital order, |
| 40 |
| the Appeal Court shall make a hospital order with a restriction order |
| |
(whether or not they would have power to make a restriction order |
| |
apart from this subsection). |
| |
|
| |
|
| |
|
(4) | The provisions of, or made under, the sections specified below shall |
| |
apply (with any necessary modifications) in relation to the Appeal |
| |
Court as they apply in relation to a court-martial. |
| |
| |
(c) | where the relevant Service Act is the Army Act, sections 116B |
| 5 |
| |
(d) | where the relevant Service Act is the Air Force Act, sections |
| |
116B to 116D of that Act; |
| |
(e) | where the relevant Service Act is the Naval Discipline Act, |
| |
sections 63B to 63D of that Act. |
| 10 |
(5) | Where the Appeal Court make an interim hospital order by virtue of |
| |
| |
(a) | the power of renewing or terminating it and of dealing with |
| |
the appellant on its termination shall be exercisable by a |
| |
judicial officer and not by the Appeal Court; and |
| 15 |
(b) | section 38(7) of the Mental Health Act 1983 (absconding |
| |
offenders) shall have effect as if the reference to the court that |
| |
made the order were a reference to a judicial officer. |
| |
(6) | Where the Appeal Court make a supervision order by virtue of this |
| |
section, any power of revoking or amending it shall be exercisable by |
| 20 |
a judicial officer and not by the Appeal Court.” |
| |
8 | In section 21 (appeal against finding of not guilty by reason of insanity), in |
| |
subsection (1), after “except” insert “section 8(2) and”. |
| |
9 | In section 22 (consequences where appeal under section 21 allowed), at the |
| |
beginning of subsection (4) insert “Subject to section 23 below,”. |
| 25 |
10 | For section 23 substitute— |
| |
“23 | Substitution of findings of unfitness to stand trial etc. |
| |
(1) | This section applies where, on an appeal under section 21 of this Act, |
| |
the Appeal Court, on the written or oral evidence of two or more |
| |
registered medical practitioners at least one of whom is duly |
| 30 |
approved, are of opinion that— |
| |
(a) | the case is not one where there should have been a finding of |
| |
| |
(b) | there should have been findings that the accused was unfit to |
| |
stand trial and that he did the act or made the omission |
| 35 |
| |
(2) | The Appeal Court shall make in respect of the appellant— |
| |
(a) | a hospital order (with or without a restriction order); |
| |
(b) | a supervision order; or |
| |
(c) | an order for his absolute discharge. |
| 40 |
| |
(a) | the offence to which the appeal relates is an offence the |
| |
sentence for which is fixed by law, and |
| |
(b) | the Appeal Court have power to make a hospital order, |
| |
| the Appeal Court shall make a hospital order with a restriction order |
| 45 |
(whether or not they would have power to make a restriction order |
| |
apart from this subsection). |
| |
|
| |
|