Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity
82

167
Findings of insanity
(1)
This section applies where on the trial of a person by the Court Martial the
court is satisfied, as respects the charge or any of the charges on which he is
being tried, that—
(a)
the defendant did the act charged against him as the offence; but
5
(b)
at the time of that act he was insane.
(2)
The court must find that the defendant was not guilty of that offence by reason
of insanity.
(3)
No finding under this section may be made except on the written or oral
evidence of two or more registered medical practitioners at least one of whom
10
is duly approved within the meaning given by section 171.
(4)
Section 159 (Court Martial decisions) does not apply to a determination or
finding under this section, but—
(a)
the question whether the court is satisfied as mentioned in subsection
(1) above is to be determined by the members of the court other than the
15
judge advocate (“the lay members”); and
(b)
the court is so satisfied if, on a vote on the question whether they are so
satisfied, a majority of the lay members are in favour.
(5)
In this section “act” includes an omission and references to the doing of an act
are to be read accordingly.
20
168
Powers where person unfit to stand trial or not guilty by reason of insanity
(1)
This section applies where on a trial by the Court Martial—
(a)
the defendant is found to be unfit to stand trial and to have done the act
charged against him; or
(b)
the defendant is found not guilty by reason of insanity.
25
(2)
Subject to subsections (4) and (5), the court must make in respect of the
defendant—
(a)
a hospital order, with or without a restriction order;
(b)
a service supervision order (defined by section 169); or
(c)
an order discharging him absolutely.
30
(3)
In this section—
“hospital order” means an order under section 37 of the Mental Health Act
1983 (c. 20) (“the 1983 Act”) as modified by Schedule 4 to this Act;
“restriction order” means an order under section 41 of that Act as so
modified.
35
(4)
The power to make a hospital order by virtue of this section is not exercisable
unless the conditions in subsections (1)(b) and (2) of section 37 of the 1983 Act,
as modified by Schedule 4 to this Act, are satisfied.
(5)
Where—
(a)
the finding mentioned in subsection (1) relates to an offence the
40
sentence for which is fixed by law, and
(b)
the court has power to make a hospital order,
the court must make a hospital order with a restriction order (whether or not it
would have power to make a restriction order apart from this subsection).

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity
83

(6)
The functions of the court under this section, and any functions under the 1983
Act that are exercisable by the court by reason of this section or Schedule 4, are
to be exercised by—
(a)
the judge advocate for the trial mentioned in subsection (1); or
(b)
in a case where that judge advocate has made an interim hospital order
5
under section 38 of the 1983 Act as modified by Schedule 4, by that or
any other judge advocate.
(7)
In subsection (1) “act” includes an omission and the reference to the doing of
an act is to be read accordingly.
(8)
Schedule 4 (modifications of the 1983 Act) has effect.
10
169
Service supervision orders
(1)
In section 168 and this section a “service 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 specified in the order (“the
supervising officer”) for a period specified in the order.
15
(2)
The period specified in the order must not exceed the maximum period for the
time being specified in paragraph 1(1) of Schedule 1A to the Criminal
Procedure (Insanity) Act 1964 (c. 84) (maximum period of civilian supervision
order).
(3)
The court may not make a service supervision order under section 168(2)(b)
20
unless it is satisfied—
(a)
that, having regard to all the circumstances of the case, the making of a
service supervision order is the most suitable way of dealing with the
defendant;
(b)
that the supervising officer intended to be specified in the order is
25
willing to undertake the supervision; and
(c)
that arrangements have been made for any treatment which (under
subsection (4)) is intended to be specified in the order.
(4)
An order under section 168(2)(b) may, in accordance with regulations under
subsection (5), require the supervised person to submit, during the whole of
30
the period specified in the order or such part of it as may be so specified, to
treatment by or under the direction of a registered medical practitioner.
(5)
The Secretary of State may by regulations make further provision in relation to
service supervision orders, including in particular provision—
(a)
as to the procedure to be followed by a court making a service
35
supervision order;
(b)
as to the descriptions of supervising officer who may be specified in
such an order;
(c)
for treatment to be provided, in accordance with arrangements made
by the medical practitioner by whom or under whose direction the
40
supervised person is being treated, at a place other than a place
specified in the order;
(d)
authorising a court to include in a service supervision order
requirements corresponding to any requirements that Schedule 1A to
the Criminal Procedure (Insanity) Act 1964 for the time being allows to
45
be included in supervision orders under that Act;

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity
84

(e)
imposing on the supervised person obligations corresponding to any
for the time being imposed by that Schedule;
(f)
for the amendment and revocation of a service supervision order.
170
Remission for trial
(1)
Where—
5
(a)
a person is detained in pursuance of a hospital order which the Court
Martial had power to make by virtue of section 168(1)(a),
(b)
the court also made a restriction order, and
(c)
the restriction order has not ceased to have effect,
the Secretary of State, if satisfied after consultation with the responsible
10
medical officer that the person can properly be tried, may remit the person for
trial by the Court Martial.
(2)
A person remitted under this section must be transferred to service custody,
but when he is so transferred—
(a)
he must as soon as practicable be brought before a judge advocate for a
15
review of whether he should continue to be kept in service custody; and
(b)
on that review he is to be dealt with as on a review under section 108(1)
(see section 108(4) to (8)).
(3)
On the transfer of a person to service custody under this section the hospital
order and restriction order cease to have effect.
20
(4)
In this section—
“hospital order” and “restriction order” have the same meanings as in
section 168;
“the responsible medical officer” means the registered medical
practitioner in charge of the person’s treatment.
25
(5)
In subsection (1)(a) the reference to a hospital order as there mentioned
includes a reference to—
(a)
a hospital order made by virtue of section 16(1)(b) or 22(3A) of the
Court Martial Appeals Act 1968 (c. 20);
(b)
a hospital order made by virtue of section 25B(1) of that Act in a case in
30
which a finding within section 168(1)(a) of this Act was made by the
Court Martial.
171
Provision supplementary to sections 165 and 167
(1)
In sections 165 and 167 and this section “duly approved” means approved for
the purposes of section 12 of the Mental Health Act 1983 by the Secretary of
35
State as having special experience in the diagnosis or treatment of mental
disorder.
(2)
For the purposes of the provisions of sections 165 and 167 which permit a court
to act on the written evidence of—
(a)
a registered medical practitioner, or
40
(b)
a registered medical practitioner who is duly 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 (4)) be received in evidence without proof of the signature of the

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
85

practitioner and without proof that he has the requisite qualifications or is duly
approved.
(3)
The court may require the signatory of any such report to be called to give oral
evidence.
(4)
Where in pursuance of a direction of the court any such report is tendered in
5
evidence otherwise than by or on behalf of the defendant, then—
(a)
if the defendant is represented by counsel or a solicitor, a copy of the
report must be given to his counsel or solicitor;
(b)
if the defendant is not so represented the substance of the report must
be disclosed to him or, if he is aged under 18, to his parent or guardian
10
if present in court;
(c)
the defendant may require the signatory of the report to be called to
give oral evidence; and
(d)
evidence to rebut the evidence contained in the report may be called by
the defendant or on his behalf.
15
Part 8
Sentencing Powers and Mandatory etc Sentences
Chapter 1
Definition etc of Certain Sentences
Service supervision and punishment orders
20
172
Service supervision and punishment orders
(1)
A service supervision and punishment order is an order that—
(a)
imposes on the offender, for a period specified in the order, such
requirements as regulations made by the Defence Council may
prescribe; and
25
(b)
provides that one-sixth of his gross pay for that period is forfeit.
(2)
The period specified in the order must be 90, 60 or 30 days beginning with the
day the order is made.
(3)
The requirements that regulations under this section may prescribe include, in
particular—
30
(a)
requirements to perform activities of a prescribed description;
(b)
requirements not to use entitlement to leave;

and the descriptions of activities that may be prescribed include extra work
and drill.
(4)
A requirement included in regulations under this section may be for a person
35
to perform an activity of a prescribed description for up to a prescribed period
of time per day, and the regulations may—
(a)
confer on the person’s commanding officer the function of deciding in
respect of any day what activities within the prescribed description
must be performed and for how much of the prescribed period of time
40
and when;

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
86

(b)
provide for the delegation by the commanding officer of any of his
functions under the regulations.
(5)
Regulations under this section may prescribe different requirements for
different parts of the period of the order.
(6)
In this section “prescribed” means prescribed by regulations under this section.
5
173
Review of service supervision and punishment orders
(1)
The commanding officer of a person subject to a service supervision and
punishment order must, at times prescribed by regulations made by the
Defence Council, consider whether the order should continue in force.
(2)
If on a review under subsection (1) the commanding officer decides that the
10
order should not continue in force, he must order that it shall immediately
cease to have effect.
(3)
Regulations made by the Defence Council may—
(a)
prescribe criteria to be applied by a commanding officer in deciding
whether an order should continue in force;
15
(b)
make provision about procedure in relation to orders under subsection
(2).
(4)
Where a commanding officer makes an order under subsection (2), there
remains forfeit one-sixth of the offender’s gross pay for the period—
(a)
beginning with the day the service supervision and punishment order
20
is made; and
(b)
ending with the day before the date of the commanding officer’s order.
Service compensation orders
174
Service compensation orders
(1)
A service compensation order is an order that requires the offender to pay
25
compensation for any personal injury, loss or damage resulting from—
(a)
the offence of which he has been convicted; or
(b)
where any other offence is taken into consideration in determining his
sentence, any offence so taken into consideration.
(2)
A service compensation order must be of such amount as the court considers
30
appropriate, having regard to any evidence and to any representations that are
made by or on behalf of the offender or the prosecutor.
(3)
In the case of an offence of unlawfully obtaining any property (whether by
stealing it, handling it or otherwise), where the property in question is
recovered, any damage to the property occurring while it was out of the
35
owner’s possession is to be treated for the purposes of this section as having
resulted from the offence, however and by whomever the damage was caused.
(4)
No service compensation order may be made in respect of—
(a)
bereavement;
(b)
funeral expenses; or
40
(c)
loss of any other kind suffered by the dependants of a person in
consequence of his death.

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
87

(5)
No service compensation order may be made in respect of injury, loss or
damage due to an accident arising out of the presence of a motor vehicle on a
road unless—
(a)
it is in respect of damage treated by subsection (3) as resulting from an
offence of unlawfully obtaining any property; or
5
(b)
it is in respect of injury, loss or damage as respects which—
(i)
the offender is uninsured in relation to the use of the vehicle;
and
(ii)
compensation is not payable under any arrangements to which
the Secretary of State is a party.
10
(6)
Where a service compensation order is made in respect of injury, loss or
damage due to an accident arising out of the presence of a motor vehicle on a
road, the amount to be paid may include an amount representing the whole or
part of any loss of or reduction in preferential rates of insurance attributable to
the accident.
15
(7)
For the purposes of subsection (5) a person is not uninsured in relation to the
use of a vehicle if—
(a)
the vehicle is in the public service of the Crown; or
(b)
the use of the vehicle is exempted from insurance by section 144 of the
Road Traffic Act 1988 (c. 52) or Article 90(2) of the Road Traffic
20
(Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)).
(8)
The court must give reasons, on passing sentence, if it does not make a service
compensation order in a case where it has power to do so.
(9)
References in this section to “the court” are references to the court or officer
sentencing the offender.
25
175
Service compensation orders: appeals etc
(1)
A person in whose favour a service compensation order is made is not entitled
to receive the amount due to him until (disregarding any power of a court to
grant leave to appeal out of time) there is no further possibility of an appeal
which could result in the order being varied or ceasing to have effect.
30
(2)
Where the Supreme Court restores a conviction of a service offence, it may
make any service compensation order which the court of trial could have
made.
(3)
Where a service compensation order has been made against any person in
respect of an offence taken into consideration in determining his sentence—
35
(a)
the order ceases to have effect if he successfully appeals against his
conviction of the offence or, if more than one, all the offences, of which
he was convicted in the proceedings in which the order was made;
(b)
he may appeal against the order as if it were part of the sentence
imposed in respect of the offence or, if more than one, any of the
40
offences, of which he was so convicted.
176
Review of service compensation orders
(1)
The appropriate court may, on the application of the person against whom a
service compensation order was made, discharge the order or reduce the
amount which remains to be paid; but this is subject to subsections (2) and (3).
45

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
88

(2)
The appropriate court may exercise a power conferred by subsection (1) only
at a time when (disregarding any power of a court to grant leave to appeal out
of time) there is no further possibility of an appeal which could result in the
order being varied or ceasing to have effect.
(3)
The appropriate court may exercise a power conferred by subsection (1) only if
5
it appears to the court—
(a)
that the injury, loss or damage in respect of which the service
compensation order was made has been held in civil proceedings to be
less than it was taken to be for the purposes of the order;
(b)
in the case of a service compensation order in respect of the loss of any
10
property, that the property has been recovered by the person in whose
favour the order was made; or
(c)
that the person against whom the service compensation order was
made has suffered a substantial reduction in his means which was
unexpected at the time when the order was made, and that his means
15
seem unlikely to increase for a considerable period.
(4)
In this section “the appropriate court” means—
(a)
if the service compensation order was awarded by an officer and
subsection (5) applies, the commanding officer of the person against
whom the service compensation order was made;
20
(b)
in any other case, the Court Martial.
(5)
This subsection applies if the person against whom the service compensation
order was made is for the time being—
(a)
subject to service law;
(b)
a member of a volunteer reserve force; or
25
(c)
a member of an ex-regular reserve force who is subject to an additional
duties commitment.
Service community orders (civilians and dismissed servicemen only)
177
Service community orders
(1)
A service community order is an order—
30
(a)
imposing on the offender one or more of the requirements mentioned
in section 177(1) of the 2003 Act (community orders under that Act);
and
(b)
specifying the local justice area in England and Wales, or (as the case
may be) the locality in Scotland or the petty sessions district in
35
Northern Ireland, where the offender resides or will reside.
(2)
The power to include in the order one or more of the requirements mentioned
in section 177(1) of the 2003 Act is subject to—
(a)
any restriction that section 177(1) imposes in relation to a particular
requirement;
40
(b)
the provisions of the 2003 Act mentioned in the paragraphs of section
177(2) of that Act; and
(c)
section 218 of that Act.
(3)
In the following provisions of the 2003 Act “community order” includes a
service community order under this Act—
45
section 177(3) to (6) (provision about the making of community orders);