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Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968

215

 

he had been acquitted by the Court Martial; but this does not apply

if an order under subsection (2)(a) authorising the appellant to be

tried is made.”

27         

For section 25A (right of appeal against hospital order etc) substitute—

“25A    

Right of appeal against hospital order etc

5

(1)   

A person may, with the leave of the Appeal Court, appeal against the

making by the Court Martial of an order within subsection (2) in

respect of him.

(2)   

The orders are—

(a)   

a hospital order;

10

(b)   

an interim hospital order;

(c)   

a service supervision order (as defined by section 169 of the

2006 Act).”

28         

In section 25B (disposal of appeals under section 25A)—

(a)   

in subsections (1) and (2) for “court below” in each place substitute

15

“Court Martial”;

(b)   

in subsection (2) omit “under the Mental Health Act 1983”;

(c)   

for subsections (3) to (5) substitute—

“(3)   

Section 16(5) applies in relation to interim hospital orders

made by virtue of this section as it applies in relation to such

20

orders made by virtue of section 16.

(4)   

The fact that an appeal is pending against a service

supervision order (as defined by section 169 of the 2006 Act)

shall not affect any power conferred on any other court to

revoke or amend the order.”

25

29         

Omit section 26 (presentation of appellant’s case).

30         

For section 27 (presence of appellant at hearing) substitute—

“27     

Right of appellant to be present

(1)   

An appellant (whether or not in custody) is entitled to be present on

the hearing of his appeal.

30

(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,

35

   

unless the Appeal Court give him leave to be present.”

31         

In section 28 (evidence)—

(a)   

in subsection (1)—

(i)   

in paragraph (b), for “at the trial” in the first place where it

occurs substitute “in the proceedings from which the appeal

40

lies” and in the second place where it occurs substitute “in

those proceedings”;

(ii)   

in paragraph (c) for “at the trial” substitute “in the

proceedings from which the appeal lies”;

 

 

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968

216

 

(b)   

in subsection (2)—

(i)   

in paragraph (c) for “at the trial” substitute “in the

proceedings from which the appeal lies”;

(ii)   

in paragraph (d) for “at the trial” substitute “in those

proceedings”.

5

32         

In section 29 (power to call for report by member of trial court)—

(a)   

in the sidenote for “trial court” substitute “the Court Martial”;

(b)   

in subsection (1) for the words from “court-martial” to “trial,”

substitute “court in the proceedings from which the appeal lies”;

(c)   

omit subsection (2).

10

33         

In section 31 (costs of successful appeal) in subsection (2), for the words from

“case” to the end substitute “proceedings (in the Appeal Court and below).”

34         

In section 32 (costs against appellant) in subsection (2) for paragraph (b)

substitute—

“(b)   

if the appellant or applicant is a member of the regular or

15

reserve forces (as defined by section 364 of the 2006 Act), by

making deductions from pay due to him,”.

35         

In section 34 (reference of cases by service authorities)—

(a)   

in subsection (1)—

(i)   

for “court-martial” in the first place where it occurs substitute

20

“the Court Martial” and in the other three places where it

occurs substitute “Court Martial”;

(ii)   

in paragraph (a) omit “the Judge Advocate of Her Majesty’s

Fleet or”;

(iii)   

for “the Judge Advocate of Her Majesty’s Fleet, the Judge

25

Advocate General” substitute “the Judge Advocate General”;

(b)   

omit subsection (3);

(c)   

in subsection (4) for “a court-martial” substitute “the Court Martial”.

36         

In section 36 (powers exercisable by single judge) in subsection (1)—

(a)   

omit “under this Part of this Act”;

30

(b)   

omit paragraph (a);

(c)   

after paragraph (c) insert—

“(ca)   

to make orders, or impose requirements, under

section 20(1E);”;

(d)   

in paragraph (g) omit the words from “and the power” to the end;

35

(e)   

after paragraph (h) insert—

“(i)   

to give a direction under section 3(4) of the Sexual

Offences (Amendment) Act 1992 (direction

disapplying provision as to anonymity of victim);”.

37         

In section 36C (appeals against procedural directions) in subsection (5)(b)—

40

(a)   

for “Defence Council” substitute “Director of Service Prosecutions”;

(b)   

for “Defence Council’s” substitute “Director of Service

Prosecutions’”.

 

 

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968

217

 

38         

For section 37 (provision of documents relating to trial) substitute—

“37     

Provision of record of proceedings of the Court Martial

In the case of every appeal or application for leave to appeal to the

Appeal Court, the Judge Advocate General must provide the

registrar, in accordance with rules of court, with a record of the

5

proceedings of the Court Martial.”

39         

In section 38 (defence of appeals) for “Defence Council” substitute “Director

of Service Prosecutions”.

40         

For the heading to Part 3 substitute “APPEAL FROM COURT MARTIAL

APPEAL COURT TO SUPREME COURT”.

10

41         

In section 39 (right of appeal to Supreme Court) in subsection (1) for

“Defence Council” substitute “Director of Service Prosecutions”.

42         

In section 43 (detention of accused)—

(a)   

for subsection (1) substitute—

“(1)   

The Appeal Court may make an order under this section

15

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 Prosections is granted leave to appeal or gives

20

notice that he intends to apply for leave to appeal.

(1A)   

An order under this section is—

(a)   

an order providing for the detention of the accused so

long as any appeal to the Supreme Court is pending;

or

25

(b)   

an order directing that, so long as any appeal to the

Supreme Court is pending, the accused is not to be

released except on bail.

(1B)   

Where an order within subsection (1A)(b) is made, the

Appeal Court may grant the accused bail pending the

30

appeal.”;

(b)   

in subsection (4) for “Mental Health (Scotland) Act 1984” substitute

“Mental Health (Care and Treatment) (Scotland) Act 2003”.

43         

Omit section 46 (restitution of property).

44         

In section 47 (costs)—

35

(a)   

in subsection (1) for “Secretary of State” in the first place where it

occurs substitute “Director of Service Prosecutions”;

(b)   

in subsection (3) for the words from “case up to” to the end substitute

“proceedings (in the Supreme Court and below).”

45         

In section 48A (appeals on behalf of deceased persons) in subsection (3)(c)

40

for “Court of Appeal” substitute “Appeal Court”.

46         

In section 50 (duties of registrar with respect to appeals etc)—

(a)   

in subsection (1) for “court-martial by which the appellant or

applicant was tried” substitute “Court Martial”;

(b)   

in subsection (2) for “court-martial” substitute “the Court Martial”.

45

 

 

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968

218

 

47         

In section 52 (removal of prisoners) for paragraphs (a) to (c) substitute—

“(a)   

section 298 of the 2006 Act;”.

48         

In section 54 (saving for prerogative) in subsection (1) for “court-martial”

substitute “the Court Martial”.

49         

For section 56 substitute—

5

“56     

Modifications for protected prisoners of war

As respects a protected prisoner of war (as defined by section 7(1) of

the Geneva Conventions Act 1957), this Act applies in relation to a

prisoner of war court-martial constituted under a Royal Warrant as

it applies in relation to the Court Martial, subject to such

10

modifications as may be contained in the Royal Warrant.”

50    (1)  

Section 57 (interpretation) is amended as follows.

      (2)  

In subsection (1)—

(a)   

after “unless the context otherwise requires,—” insert—

““the 2006 Act” means the Armed Forces Act 2006;”;

15

(b)   

omit the definitions of—

“the Air Force Act”;

“air force court-martial”;

“the Army Act”;

“army court-martial”;

20

“court-martial”;

“duly approved”;

“judicial officer”;

“the Naval Discipline Act”;

“naval court-martial”;

25

“restriction order”;

“supervision order”;

(c)   

in the definition of “appellant” omit “has been tried by court-martial

and”;

(d)   

after the definition of “court-martial” (omitted by virtue of sub-

30

paragraph (b)) insert—

““Director of Service Prosecutions” has the meaning

given by section 364 of the 2006 Act;”;

(e)   

for the definition of “the Judge Advocate General” substitute—

““Judge Advocate General” has the meaning given by

35

section 364 of the 2006 Act;”.

      (3)  

Omit subsections (2) to (2B).

      (4)  

In subsection (3) for the words from “the accused in the court-martial” to the

end substitute “the appellant in the Appeal Court.”

51         

Omit section 58 (consequential amendments).

40

52         

In section 61 (short title and commencement), in subsection (1) for “Courts-

Martial (Appeals) Act 1968” substitute “Court Martial Appeals Act 1968”.

 

 

Armed Forces Bill
Schedule 9 — Assessors of compensation for miscarriages of justice

219

 

53         

For Schedule 1 (provisions as to retrial) substitute—

“Schedule 1

Section 20

 

Provisions as to Retrial

1          

This Schedule applies where an order under section 19 is made

authorising the retrial of a person.

5

2          

Evidence given at the retrial must be given orally if it was given

orally at the original trial, unless—

(a)   

all parties to the retrial agree otherwise;

(b)   

section 116 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is

10

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).

15

3          

If the person is convicted on the retrial, the Court Martial may not

pass a sentence that is (or sentences that, taken together, are) more

severe than the sentence (or the sentences, taken together) passed

at the original trial.

4          

In sections 245 and 246 of the 2006 Act (crediting of time in service

20

custody) as they apply in relation to the retrial, references to the

offender being kept in service custody include references to his

being kept in custody (whether service or otherwise) in pursuance

of a sentence passed at the original trial.”

54         

Omit Schedule 3 (modifications in relation to prisoners of war).

25

55         

Omit Schedule 4 (consequential amendments).

Schedule 9

Section 275

 

Assessors of compensation for miscarriages of justice

1     (1)  

A person is qualified for appointment as an assessor for the purposes of

section 275 if he—

30

(a)   

has a seven year general qualification within the meaning of section

71 of the Courts and Legal Services Act 1990 (c. 41);

(b)   

is an advocate or solicitor in Scotland;

(c)   

is a member of the Bar of Northern Ireland, or a solicitor of the

Supreme Court of Northern Ireland, of at least seven years’ standing;

35

(d)   

holds or has held judicial office in any part of the United Kingdom;

(e)   

is a member (whether the chairman or not) of the Criminal Injuries

Compensation Board; or

(f)   

has in a relevant territory rights and duties similar to those of a

barrister or solicitor in England and Wales, has had those rights and

40

 

 

Armed Forces Bill
Schedule 9 — Assessors of compensation for miscarriages of justice

220

 

duties for at least seven years, and is subject to punishment or

disability for breach of professional rules.

      (2)  

In this paragraph “relevant territory” means—

(a)   

any of the Channel Islands;

(b)   

the Isle of Man;

5

(c)   

a Commonwealth country; or

(d)   

a British overseas territory.

2          

A person shall hold and vacate office as an assessor in accordance with the

terms of his appointment.

3          

A person shall vacate office as an assessor—

10

(a)   

if he ceases to be qualified for appointment as an assessor, or

(b)   

on attaining the age of 72,

           

unless the Secretary of State considers that it is in the interests of the efficient

operation of section 275 that he should continue to hold office.

4          

A person may at any time resign his office as an assessor by notice in writing

15

given to the Secretary of State.

5          

Subject to paragraph 6, the Secretary of State may at any time remove a

person from office as an assessor if satisfied that—

(a)   

he has been convicted of a criminal offence;

(b)   

he has become bankrupt, has made an arrangement with his

20

creditors, has had his estate sequestrated or has granted a trust deed

for his creditors or a composition contract; or

(c)   

he is unable or unfit to perform his duties.

6     (1)  

The exercise of the power conferred by paragraph 5 is subject to the

following provisions of this paragraph.

25

      (2)  

In the case of a person who qualifies for appointment under—

(a)   

paragraph 1(1)(a), or

(b)   

paragraph 1(1)(d) by virtue of holding or having held judicial office

in England and Wales,

           

that power shall only be exercisable with the consent of the Lord Chancellor,

30

which may only be given with the concurrence of the Lord Chief Justice of

England and Wales.

      (3)  

In the case of a person who qualifies for appointment under—

(a)   

paragraph 1(1)(b), or

(b)   

paragraph 1(1)(d) by virtue of holding or having held judicial office

35

in Scotland,

           

that power shall only be exercisable with the consent of the Lord President

of the Court of Session.

      (4)  

In the case of a person who qualifies for appointment under—

(a)   

paragraph 1(1)(c), or

40

(b)   

paragraph 1(1)(d) by virtue of holding or having held judicial office

in Northern Ireland,

           

that power shall only be exercisable with the consent of the Lord Chancellor,

which may only be given with the concurrence of the Lord Chief Justice of

Northern Ireland.

45

 

 

Armed Forces Bill
Schedule 11 — Detention etc of persons in overseas service hospitals

221

 

7          

An assessor shall be paid such remuneration and allowances as the Secretary

of State may determine.

Schedule 10

Section 277

 

Proceedings of the Service Civilian Court

Court to sit in public

5

1          

Subject to any provision made by SCC rules, the Service Civilian Court must

sit in open court.

Unfitness to stand trial and insanity

2          

Where on a trial of a charge by the Service Civilian Court any question arises

(whether at the instance of the defence or otherwise)—

10

(a)   

whether the defendant is fit to stand trial, or

(b)   

where it appears that the defendant did the act or made the omission

charged against him as the offence, whether he was insane at the

time of the act or omission,

           

the court must refer the charge to the Court Martial for trial by that court.

15

Privilege of witnesses and others

3          

A witness before the Service Civilian Court or any other person whose duty

it is to attend the court is entitled to the same immunities and privileges as a

witness before a magistrates’ court in England or Wales.

Schedule 11

20

Section 345

 

Detention etc of persons in overseas service hospitals

The relevant conditions

1     (1)  

In this Schedule references to the relevant conditions, in relation to a person,

are to the following conditions.

      (2)  

Condition A is that the person is suffering from mental disorder.

25

      (3)  

Condition B is that the mental disorder is of such a nature or degree as to

warrant his detention in a hospital for assessment or treatment for at least a

limited period.

      (4)  

Condition C is that it is necessary that the person be so detained—

(a)   

in the interests of his own health or safety; or

30

(b)   

with a view to the protection of others.

Order for person’s detention in overseas service hospital

2     (1)  

This paragraph has effect in relation to—

(a)   

a person subject to service law, or

 

 

 
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Revised 1 December 2005