|
| |
|
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
“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 |
| |
| 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. |
| |
| |
(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). |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(3) | The court may not make a service supervision order under section 168(2)(b) |
| 20 |
| |
(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 |
| |
| |
(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 |
| |
(b) | as to the descriptions of supervising officer who may be specified in |
| |
| |
(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 |
| |
| |
(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; |
| |
|
| |
|
| |
|
(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. |
| |
| |
| 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 |
| |
“hospital order” and “restriction order” have the same meanings as in |
| |
| |
“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 |
| |
| |
(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 |
| |
| |
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 |
| |
| |
(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 |
| |
|
| |
|
| |
|
practitioner and without proof that he has the requisite qualifications or is duly |
| |
| |
(3) | The court may require the signatory of any such report to be called to give oral |
| |
| |
(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 |
| |
(c) | the defendant may require the signatory of the report to be called to |
| |
| |
(d) | evidence to rebut the evidence contained in the report may be called by |
| |
the defendant or on his behalf. |
| 15 |
| |
Sentencing Powers and Mandatory etc Sentences |
| |
| |
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 |
| |
| 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 |
| |
| |
(3) | The requirements that regulations under this section may prescribe include, in |
| |
| 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 |
| |
| |
(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 |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
(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— |
| |
| |
| 40 |
(c) | loss of any other kind suffered by the dependants of a person in |
| |
consequence of his death. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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; |
| |
| |
(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 |
| |
| 15 |
(7) | For the purposes of subsection (5) a person is not uninsured in relation to the |
| |
| |
(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 |
| |
| 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 |
| |
| |
(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 |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
| |
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); |
| |
| |
(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 |
| |
| 40 |
(b) | the provisions of the 2003 Act mentioned in the paragraphs of section |
| |
| |
(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); |
| |
|
| |
|