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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);

 
 

 
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