Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 10 — Court Martial Decisions: Appeals and Review
Chapter 3 — Compensation for Miscarriages of Justice
136

(2)
A reference under subsection (1) may not be made without the leave of the
Court Martial Appeal Court or the Supreme Court.
(3)
Such leave may not be given unless—
(a)
the Court Martial Appeal Court has certified that the point of law is of
general public importance; and
5
(b)
it appears to the Court Martial Appeal Court or the Supreme Court (as
the case may be) that the point is one which should be considered by
the Supreme Court.
(4)
The Supreme Court must give its opinion on any point of law referred to it
under subsection (1) and must—
10
(a)
remit the case to the Court Martial Appeal Court to be dealt with; or
(b)
deal with the case itself.
(5)
For the purposes of dealing with a case itself the Supreme Court may exercise
any powers of the Court Martial Appeal Court.
274
Power to make supplementary provision about review of sentence
15
(1)
The Secretary of State may by regulations make supplementary provision with
respect to references under section 272(1) or 273(1) (including provision with
respect to applications, proceedings and other matters in connection with such
references).
(2)
The regulations may in particular include provision which is equivalent to that
20
made by, or capable of being made under, any provision of—
(a)
this Act,
(b)
the Court Martial Appeals Act 1968 (c. 20), or
(c)
Schedule 3 to the Criminal Justice Act 1988 (c. 33) (reviews of
sentencing; supplementary),
25

subject to such modifications as the Secretary of State considers appropriate.
Chapter 3
Compensation for Miscarriages of Justice
275
Compensation for miscarriages of justice
(1)
Where—
30
(a)
a person has been convicted by the Court Martial, and
(b)
subsequently his conviction has been reversed, or he has been
pardoned, on the ground that a new or newly discovered fact shows
beyond reasonable doubt that there has been a miscarriage of justice,

the Secretary of State shall pay compensation for the miscarriage of justice to
35
him or, if he is dead, to his personal representatives; but this is subject to
subsections (2) and (3).
(2)
Compensation under this section is not payable if the non-disclosure of the
unknown fact was wholly or partly attributable to the person convicted.
(3)
Compensation under this section is not payable unless an application for such
40
compensation has been made to the Secretary of State.

Armed Forces Bill
Part 11 — The Service Civilian Court
137

(4)
The question whether there is a right to compensation under this section is to
be determined by the Secretary of State.
(5)
If the Secretary of State determines that there is a right to such compensation,
the amount of the compensation is to be assessed by an assessor appointed by
the Secretary of State.
5
(6)
In assessing the amount of compensation payable to or in respect of a person
that is attributable to suffering, harm to reputation or similar damage, the
assessor must have regard in particular to—
(a)
the seriousness of the offence of which the person was convicted and
the severity of the resulting sentence;
10
(b)
the conduct of the investigation and prosecution of the offence; and
(c)
any other convictions of the person and any resulting sentences.
(7)
The reference in subsection (1) to a conviction having been reversed is to be
read as a reference to a conviction having been quashed—
(a)
on an appeal out of time, or
15
(b)
on a reference under section 34 of the Court Martial Appeals Act 1968
(c. 20).
(8)
Schedule 9 (provision with regard to assessors) has effect.
Part 11
The Service Civilian Court
20
The Service Civilian Court: court and proceedings
276
The Service Civilian Court
(1)
There shall be a court, to be known as the Service Civilian Court.
(2)
The Service Civilian Court may sit in any place other than in the British Islands.
277
Constitution and proceedings of the Service Civilian Court
25
(1)
In any proceedings, the Service Civilian Court is to consist of a single judge
advocate.
(2)
The judge advocate for any proceedings is to be specified by or on behalf of the
Judge Advocate General.
(3)
Schedule 10 (proceedings of the Service Civilian Court) has effect.
30
278
Court must consider whether trial by Court Martial more appropriate
(1)
Before arraignment, the Service Civilian Court must decide whether it or the
Court Martial should try the charge.
(2)
Before making a decision under this section, the court must—
(a)
give the Director of Service Prosecutions (“the Director”) an
35
opportunity to inform the court of the defendant’s previous
convictions (if any); and

Armed Forces Bill
Part 11 — The Service Civilian Court
138

(b)
give the Director and the defendant an opportunity to make
representations as to whether the Service Civilian Court or the Court
Martial should try the charge.
(3)
In making a decision under this section, the court must consider—
(a)
the nature of the case;
5
(b)
the seriousness of the offence;
(c)
whether its powers of punishment in respect of the offence would be
adequate;
(d)
any other circumstances it considers to be relevant; and
(e)
any representations made by the Director and the defendant.
10
(4)
If the court decides that the charge should be tried by the Court Martial—
(a)
it must refer the charge to that court; and
(b)
the charge is to be regarded for the purposes of Part 5 as allocated for
Court Martial trial.
(5)
Section 237(3) (meaning of “previous conviction”) applies for the purposes of
15
subsection (2)(a) above.
279
Right to elect trial by Court Martial instead of by SCC
(1)
This section applies where the Service Civilian Court decides (under section
278) that it should try a charge.
(2)
Before arraignment the court must, in the way specified by SCC rules, give the
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defendant the opportunity of electing Court Martial trial of the charge.
(3)
If the defendant or (if more than one person is jointly charged) any of the
defendants elects Court Martial trial of the charge—
(a)
the Service Civilian Court must refer the charge to the Court Martial;
and
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(b)
the charge is to be regarded for the purposes of Part 5 as allocated for
Court Martial trial.
(4)
If subsection (3) does not apply, the Service Civilian Court must try the charge
(but this is subject to the exercise by the Director of Service Prosecutions of the
power under section 125(2)(b), (d) or (e)).
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(5)
Where the Service Civilian Court is, in accordance with SCC rules, to try
together two or more charges against the defendant, an election for Court
Martial trial in respect of any of the charges takes effect as an election in respect
of all of them.
280
Power of SCC to convict of offence other than that charged
35
Section 160 (power of Court Martial to convict of offence other than that
charged) applies in relation to the Service Civilian Court as it applies in relation
to the Court Martial.

Armed Forces Bill
Part 11 — The Service Civilian Court
139

Punishments available to Service Civilian Court
281
Punishments available to Service Civilian Court
(1)
The second column of the following Table lists the punishments that may be
awarded by sentence of the Service Civilian Court, subject in the case of each
punishment to any limitation shown in the third column opposite it.
5

TABLE

Row
Punishment
Limitation

Number

1
imprisonment for a term not exceeding

the maximum allowed by section 282

10

2
a fine not exceeding the maximum

allowed by section 283

3
a service community order (defined by
only if subsection (3)

section 177)
permits

4
an overseas community order (defined
only if it appears to the

15

by section 181)
court that the offender

will reside outside the

United Kingdom when

the order is in force

5
a conditional discharge (defined by

20

section 184)

6
an absolute discharge (defined by

section 184)

7
a service compensation order (defined

by section 174) of an amount not

25

exceeding the maximum allowed by

section 283

(2)
Subsection (1) is subject to (in particular)—
Chapter 4 of Part 8 (imprisonment for under 12 months);
Chapter 5 of that Part (young offenders’ custodial sentences); and
30
Part 9 (general provisions about sentencing).
(3)
The court may not make a service community order unless—
(a)
the offender is aged 18 or over when convicted; and
(b)
it appears to the court that he will reside in the United Kingdom when
the order is in force.
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282
Imprisonment: maximum term
(1)
The Service Civilian Court may not impose imprisonment for more than 12
months in respect of any one offence.

Armed Forces Bill
Part 11 — The Service Civilian Court
140

(2)
Where the Service Civilian Court imposes two or more terms of imprisonment
to run consecutively their aggregate must not exceed 65 weeks.
283
Fines and compensation orders: maximum amounts
(1)
The Service Civilian Court may not in respect of any one offence impose a fine
exceeding the prescribed sum.
5
(2)
Where the Service Civilian Court convicts a person of an offence under section
42 (criminal conduct), it may not impose a fine which a magistrates’ court in
England or Wales could not impose on him for the corresponding offence
under the law of England and Wales.
(3)
The compensation to be paid under a service compensation order made by the
10
Service Civilian Court in respect of any offence of which the court has
convicted the offender must not exceed the amount for the time being
mentioned in section 131(1) of the Sentencing Act (limit on compensation order
made by magistrates’ court).
(4)
The compensation or total compensation to be paid under a service
15
compensation order or service compensation orders made by the Service
Civilian Court in respect of any offence or offences taken into consideration in
determining sentence must not exceed the difference (if any) between—
(a)
the amount or total amount which under subsection (3) is the
maximum for the offence or offences of which the offender has been
20
convicted; and
(b)
the amount or total amounts (if any) which are in fact ordered to be
paid in respect of that offence or those offences.
Appeals from Service Civilian Court
284
Right of appeal from SCC
25
(1)
A person convicted by the Service Civilian Court may appeal to the Court
Martial—
(a)
if he pleaded guilty, against his sentence;
(b)
if he did not plead guilty, against his conviction or sentence.
(2)
It is immaterial for the purposes of subsection (1)(a), and of subsection (1)(b) so
30
far as relating to sentence, whether the sentence was passed on conviction or in
subsequent proceedings.
(3)
Subject to subsection (4), any appeal under this section must be brought—
(a)
within the period of 28 days beginning with the date on which the
person was sentenced (“the initial period”); or
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(b)
within such longer period as the Court Martial may allow by leave
given before the end of the initial period.
(4)
The Court Martial may at any later time give leave for an appeal to be brought
within such period as it may allow.
(5)
The respondent to an appeal under this section is the Director of Service
40
Prosecutions.
(6)
In this section “sentence” includes any order made by a court when dealing
with an offender.