House of Commons - Explanatory Note
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SCHEDULE 2 - "SCHEDULE 2 OFFENCES"

876.      Schedule 2 lists a number of offences under the Bill. They all inherently serious (There cannot be a minor example of the offence). It includes some serious disciplinary offences, such as mutiny and desertion) and criminal conduct offences under the Bill corresponding to serious criminal offences, such as murder, manslaughter and various sexual offences. The obligations of COs (under clause 113) to ensure that the service police are aware of the possibility that certain offences have been committed, and the obligation of service policeman (under clause 116) to refer certain cases to the Director of Service Prosecutions, relate to the offences listed in this Schedule.

SCHEDULE 3 - CIVILIANS: MODIFICATIONS OF COURT MARTIAL SENTENCING POWERS

Part 1 - Civilian Offenders

877.     Paragraph 1 provides for a list of punishments available to the Court Martial in respect of a civilian offender and defines "a civilian offender", "a civilian" and "liability to recall". The list is reduced in comparison to the punishments able to be awarded to service personnel as provided for by clause 163. A civilian offender is liable to one or more of the punishments listed in Schedule 3 Part 1.

878.      Paragraph 2 provides that when a civilian offender commits an offence under clause 42, the punishments that he is liable to are confined to those listed in Schedule 3 Part 1, except imprisonment.

Part 2 - Ex-Servicemen etc

879.     Paragraph 3 provides for a list of punishments available to the Court Martial in respect of ex-servicemen and defines such an offender. This list provides for the same punishments as provided for by clause 163 except forfeiture of seniority and minor punishments, and places certain limitations on punishment in relation to the former rank or rate of the person being sentenced. Paragraph 4 provides that punishments for certain specified offences committed by an ex-serviceman are confined to those listed in Schedule 3, Part 2 and subject to certain further restrictions.

SCHEDULE 4 - MODIFICATIONS OF MENTAL HEALTH ACT 1983

880.     Schedule 4 modifies sections 35 to 38 and 41 of the Mental Health Act 1983 ("the 1983 Act"). It relates to the case where under section 168 of the Bill the Court Martial finds a person unfit to stand trial, or not guilty by reason of insanity. In such a case section 168 states that the Court Martial may make a hospital order, with or without a restriction order, under the 1983 Act. The modifications made by Schedule 4 ensure that the relevant provisions of the 1983 Act are triggered and work properly in this case.

881.     The provision modified relate to the circumstances in which orders under the 1983 Act can be made and the effect of those orders. The orders in question are: hospital orders and interim hospital orders (which authorise a person's admission to and detention in hospital), restriction orders (which restrict his discharge from hospital), and orders remanding a person to hospital for a report of treatment.

882.     Paragraph 1 modifies section 37 of the 1983 Act so that the cases in which a hospital order may be made under that section include the case covered by section 168 of the Bill.

883.     Paragraph 2 modifies section 41(1) of the 1983 Act so that the reference within the section to the Crown Court is to be read as a reference to the Court Martial and any reference to an offender is to be read as a reference to a defendant to whom clause 168 applies and therefore enables the Court Martial to make a restriction order in addition to a hospital order.

884.     Paragraph 3 modifies section 35 of the 1983 Act so as to provide that where a court has made a determination of unfitness to stand trial or insanity in accordance with clause 168 but has not made a hospital order (with or without a restriction order), a service supervision order or given the defendant an absolute discharge, it may remand the defendant to a hospital in order to obtain a report on the defendant's mental condition.

885.     Paragraph 4 modifies section 36 of the 1983 Act so as to provide that where a court has made a determination of unfitness to stand trial or insanity in accordance with clause 168 but has not made a hospital order (with or without a restriction order), a service supervision order or given the defendant an absolute discharge, it may remand the defendant to a hospital in order for the defendant to receive medical treatment.

886.     Paragraph 5 modifies section 38 of the 1983 Act so as to provide that where a court has made a determination of unfitness to stand trial or insanity in accordance with clause 168 but has not made a hospital order (with or without a restriction order), a service supervision order or given the defendant an absolute discharge, it may make an interim hospital order for initially no longer than 12 weeks which can be renewed for periods up to 28 days at a time to a maximum period of 12 months.

SCHEDULE 5 - BREACH, REVOCATION AND AMENDMENT OF COMMUNITY PUNISHMENTS

Part 1 - Service community orders

887.     This part of the Schedule modifies Schedule 8 to the 2003 Act so as to enable the Crown Court to deal with breaches of service community orders and to revoke or amend such orders. The effect is as follows.

888.     If the responsible officer thinks that the offender has failed without reasonable excuse to comply with the order, he can (and, if the offender has been warned about such failure within the previous 12 months, must) lay an information before the Crown Court. That court can then issue a summons or warrant. If the court is satisfied that the offender has failed without reasonable excuse to comply with the order, it must either amend the order so as to make the requirements more onerous or re-sentence the offender for the original offence. If the failure to comply is wilful and persistent, the court can impose a sentence of imprisonment even if the original offence was not punishable with imprisonment.

889.     The offender or the responsible officer can apply to the Crown Court for the order to be revoked. The court can revoke the order if it thinks this is in the interests of justice, having regard to developments since the order was made (such as the offender's making good progress or responding satisfactorily to supervision or treatment). If the court does revoke the order it can also re-sentence the offender for the original offence.

890.     The offender or the responsible officer can apply to the Crown Court for the order to be amended. The court can substitute for the local justice area specified in the order a different local justice area to which the offender has moved or is moving, cancel any of the requirements in the order, or substitute other requirements of the same kind. Certain kinds of requirement may not be amended unless the offender agrees to comply with the amended requirement, but if he does not agree the court can re-sentence him for the original offence.

891.     If the offender is convicted of another offence by a magistrates' court while the order is in force, that court can refer the offender to the Crown Court. The Crown Court can then revoke the order, with or without re-sentencing the offender for the original offence. The same powers are available if the Crown Court itself convicts the offender of another offence while the order is in force.

892.     In each case where the Crown Court has power to re-sentence the offender for the original offence, it can exercise its ordinary sentencing powers rather than those of the service court that made the order (except that, where it was the SCC that made the order, the Crown Court cannot impose a term of imprisonment, or a fine, greater than the SCC could have imposed). The offender can appeal against the new sentence as if he had been convicted by the Crown Court of the original offence.

Part 2 - Overseas community orders

893.      This part of the Schedule modifies Schedule 8 to the 2003 Act so as to enable the Court Martial and the SCC to deal with breaches of overseas community orders and to revoke or amend such orders. The effect is as follows.

894.     If the responsible officer thinks that the offender has failed without reasonable excuse to comply with the order, he can (and, if the offender has been warned about such failure within the previous 12 months, must) make an application to the court that made the order (or, if the order was made on appeal, to the Court Martial). That court can then issue a summons or warrant. If the court is satisfied that the offender has failed without reasonable excuse to comply with the order, it must either amend the order so as to make the requirements more onerous or re-sentence the offender for the original offence. If the failure to comply is wilful and persistent, the court can impose a custodial sentence even if the original offence was not punishable with such a sentence.

895.     The offender or the responsible officer can apply to the court that made the order (or, if the order was made on appeal, the Court Martial) for the order to be revoked. The court can revoke the order if it thinks this is in the interests of justice,

having regard to developments since the order was made. If the court does revoke the order it can also re-sentence the offender for the original offence.

896.     The offender or the responsible officer can apply to the court that made the order (or, if the order was made on appeal, the Court Martial) for the order to be amended. The court can cancel any of the requirements in the order, or substitute other requirements of the same kind. Certain kinds of requirement may not be amended unless the offender agrees to comply with the amended requirement, but if he does not agree the court can re-sentence him for the original offence.

897.     If the offender is convicted by the Court Martial of a further offence while the order is in force, the court can revoke the order, with or without re-sentencing the offender for the original offence. The SCC has a similar power, but only where it was the SCC that made the order.

898.     Where the order was not made by the Court Martial, and that court re-sentences the offender for the original offence, he can appeal against the new sentence as if it had been the Court Martial that convicted him of the original offence.

899.     Court Martial rules may allow the powers conferred on the Court Martial by Schedule 8 to the 2003 Act (as applied by this Schedule) to be exercised by a judge advocate sitting alone.

SCHEDULE 6 - OVERSEAS COMMUNITY ORDERS: YOUNG OFFENDERS

900.     This Schedule further modifies, for offenders aged under 18 on conviction, the provisions of the 2003 Act that are applied to overseas community orders (with modifications) by clause 181. It also provides for a new requirement specifically for young offenders.

901.     Paragraph 1 imposes an age limit on the offenders on whom an unpaid work requirement can be imposed.

902.     Paragraph 2 imposes a maximum of three months on the period for which an exclusion requirement can be imposed. Paragraph 8 enables the Secretary of State to amend this maximum.

903.     Paragraph 3 modifies the residence requirement so that, instead of specifying a place where the offender must reside, it can require him to reside with a specified person, but only if that person has consented to the requirement. The offender cannot be required to reside at a specified place if he is under 16 on conviction.

904.     Paragraph 4 dispenses with the need for the offender's consent to the imposition of a mental health requirement, or to a decision as to where treatment under such a requirement should be carried out, where the offender is aged under 14.

905.     Under the 2003 Act, a drug rehabilitation requirement must require the offender not only to undergo treatment but also to provide samples for testing to see whether he has any drugs in his body; but a court cannot impose a drug rehabilitation requirement unless the offender agrees to comply with it. In the case of an offender aged 14 or over but under 18, paragraph 5 prohibits a drug rehabilitation requirement from including a requirement to provide samples for testing unless the offender agrees to do so (as well as agreeing to undergo treatment). An offender aged under 14 can be required to undergo treatment without his agreement, but cannot be required to provide samples at all. The 6-month minimum period for a drug rehabilitation requirement does not apply where the offender is under 18 on conviction.

906.     Under paragraph 6, an alcohol treatment requirement cannot be imposed on an offender aged under 18 on conviction.

907.     Paragraph 7 provides for a new requirement—the education requirement—which requires the offender to comply with arrangements made for his education during a specified period. The paragraph sets out the circumstances in which such a requirement can be imposed.

SCHEDULE 7 - SUSPENDED PRISON SENTENCE: FURTHER CONVICTION OR BREACH OF REQUIREMENT

Part 1 - Introductory

908.     Schedule 7 of the Bill modifies Part 2 of Schedule 12 of the 2003 Act, which makes provision for dealing with an offender who fails to comply with the community requirements under a suspended sentence order, or is convicted of a further offence committed during the operational period.

909.     In the case of a suspended sentence order with community requirements made by a service court, paragraph 1 of this Schedule provides that certain provisions of Schedule 12 to the 2003 Act do not apply (chiefly so as to ensure that the court responsible for enforcing such an order in England and Wales is the Crown Court), and that certain other provisions of that Schedule are modified in accordance with paragraphs 4 to 9 of this Schedule. The effect is as follows.

910.      In those circumstances where, in the case of a suspended sentence order made by a civilian court, the responsible officer would lay an information before a justice of the peace alleging that the offender has failed without reasonable excuse to comply with the requirements of the order, he must instead lay the information before the Crown Court, and it is the Crown Court that can issue a summons or warrant.

911.      If the Crown Court is satisfied that the offender has failed without reasonable excuse to comply with the requirements of the order, or convicts him of an offence committed during the operational period of the order, it must deal with him in one of the ways specified by paragraph 8(2) of Schedule 12 to the 2003 Act. It can order that the suspended sentence is to take effect (with or without an amendment to its original terms) or amend the suspended sentence order so as to impose more onerous requirements, extend the period for which the requirements apply, or extend the operational period. Where it orders that the suspended sentence is to take effect, the offender can appeal against that order as if it were a sentence.

912.      The SCC must similarly deal with the offender in one of the ways specified by paragraph 8(2) of Schedule 12 to the 2003 Act if it convicts him of a further service offence committed during the operational period.

913.      The Court Martial must deal with the offender in one of the ways specified by paragraph 8(2) of Schedule 12 to the 2003 Act if:

  • it convicts him of a further service offence committed during the operational period, or

  • he is convicted by a civilian court in the British Islands or a service court of an offence committed during that period but is not dealt with in respect of the suspended sentence, and subsequently appears or is brought before the Court Martial. The Court Martial can issue a summons or a warrant for this purpose. For this purpose a magistrates' court in England and Wales, and any court in Scotland or Northern Ireland, must notify the Court Martial if it convicts the offender of an offence committed during the operational period.

914.      Where the Court Martial or the SCC orders that the suspended sentence is to take effect, that court can make a custody plus order, but is not required to do so. The offender can appeal against the order as if it were a sentence.

915.      In the case of a suspended sentence order without community requirements made by a service court, paragraph 2 of this Schedule disapplies those provisions of Part 2 of Schedule 12 to the 2003 Act that relate to breaches of community requirements. Where the offender is convicted of a further offence, Schedule 12 to the 2003 Act is modified by paragraphs 6 to 9 of this Schedule in the same way as for a suspended sentence order with community requirements.

SCHEDULE 8 - AMENDMENT OF THE COURTS-MARTIAL (APPEALS) ACT 1968

916.     This Schedule amends the 1968 Act and which is now renamed as the Court Martial Appeals Act 1968. The amendments contained in Schedule 8 are largely consequential on changes made in this Bill. Many of these consequential amendments are minor in nature and reflect, for example, changes in terminology introduced by this Bill. However, there are a number of more significant amendments which are explained below.

917.     Paragraph 7 amends section 8 of the 1968 Act by removing the need for the appellant to present a petition to the Defence Council (or such other person as may be authorised) praying that the conviction or sentence be quashed before he can exercise his right of appeal. Because there is no longer to be a reviewing authority in relation to Court Martial convictions, it follows that the appellant should be able to apply for leave to appeal immediately, as in the civilian system, without the need to present a petition first.

918.     Paragraph 8 repeals section 10 of the 1968 Act which dealt with presentation of petitions to the Defence Council from courts-martial abroad.

919.     Paragraph 10 inserts a new subsection 12(3) in the 1968 Act to provide that where the Court Martial Appeal Court quashes a conviction, the appellant is to be treated as if he had been acquitted by the Court Martial, unless the appellant is ordered to be retried under section 19.

920.     Paragraph 11 substitutes a new section 13 of the 1968 Act. Section 13 allowed the Courts-Martial Appeal Court to substitute a different sentence where the appellant was convicted on two or more charges and some, but not all, of the convictions were quashed. This reflected the fact that a court martial passed a single sentence in respect of all the charges on which the offender was convicted. Because the Court Martial will pass separate sentences in respect of each conviction, the new section 13 allows the Court Martial Appeal Court to substitute an individual sentence provided that the appellant's sentences (taken together) for all offences of which he remains convicted are no more severe that the sentences originally passed by the Court Martial.

921.     Paragraph 12 makes essentially cosmetic amendments to section 14 of the 1968 Act, which allows the Court Martial Appeal Court to substitute a conviction on a different charge following a not guilty plea.

922.     Paragraph 13 makes similar amendments to section 14A of the 1968 Act, which allows the Court Martial Appeal Court to substitute a conviction on a different charge following a guilty plea.

923.     Paragraph 14 repeals section 15 of the 1968 Act which applied to offences carrying differing degrees of punishment. It allowed the Courts-Martial Appeal Court to substitute a finding of guilty under circumstances attracting the lower degree of punishment.

924.     Paragraph 15 amends section 16 of the 1968 Act and allows the Court Martial Appeal Court to substitute a finding of not guilty by reason of insanity or a finding that the appellant was unfit to stand trial. It also extends to the Court Martial Appeal Court the same powers as apply to the Court Martial in the event of such findings.

925.     Paragraph 16 substitutes a new section 16A of the 1968 Act and sets out the Court Martial Appeal Court's powers in respect of appeals against sentence. The new section reflects the fact that the Court Martial now passes separate sentences for each offence for which a defendant is convicted.

926.     Paragraph 18 repeals section 17A of the 1968 Act which applied restrictions to the exercise by the Courts-Martial Appeal Court of its powers to substitute a sentence in the case of a civilian appellant.

927.     Paragraph 19 repeals section 18 which provided that an appellant was not to be tried again for an offence in respect of which the Courts-Martial Appeal Court had quashed a conviction, unless the Court authorised a retrial under section 19. The provision was required because the court martial which convicted the appellant would have been dissolved after the trial and could not therefore be directed, as in the civilian system, to enter an acquittal. With the creation of the standing Court Martial and the amendment of section 12 of the 1968 Act, the safeguard of section 18 is no longer required.

928.     Paragraph 20 amends section 19 of the 1968 Act to set out the powers of the DSP where a retrial has been directed.

929.     Paragraph 21 substantially amends section 20 of the 1968 Act which deals with the procedure for retrials ordered under section 19. It provides that the leave of the Court Martial Appeal Court must be obtained in order to arraign the defendant if he has not been arraigned within three months of the order for retrial. The amended section also allows the Court Martial Appeal Court to make orders for the custody of the defendant pending his retrial.

930.     Paragraph 22 amends section 21 of the 1968 Act by inserting new subsections (1A) and (1B) allowing the Court Martial Appeal Court to allow an appeal against a finding of not guilty by reason of insanity, and to order a retrial if necessary, if they think that the finding is unsafe.

931.     Paragraph 23 amends section 22 of the 1968 Act by inserting a new subsection (3A) allowing the Court Martial Appeal Court to substitute, for the finding of the Court Martial, a finding that the appellant was unfit to stand trial. The amended section also provides that where the Court Martial Appeal Court quash a finding of not guilty by reason of insanity, the appellant is treated as if he had been acquitted by the Court Martial (unless an order for retrial is made).

932.     Paragraph 24 repeals section 23 of the 1968 Act, which allowed the Courts-Martial Appeal Court to substitute, for the finding of a court martial, a finding that the

appellant was unfit to stand trial. This provision is now contained in the amended section 22(3A) of the 1968 Act.

933.     Paragraph 26 amends section 25 of the 1968 Act which deals with the disposal of an appeal against a finding by the Court Martial that a person is unfit to stand trial. It allows the Court Martial Appeal Court to quash a finding if they think that the finding is unsafe and to order that the appellant be tried for the offence with which he was charged. The amended section also provides that where the Court Martial Appeal Court quashes a finding that the defendant did the act charged, he is treated as if he had been acquitted by the Court Martial (unless an order for retrial is made).

934.     Paragraph 27 substitutes a new section 25A in the 1968 Act setting out the various mental health orders in respect of which the appellant may appeal, in the same way as an appeal against sentence.

935.     Paragraph 29 repeals section 26 of the 1968 Act which allowed an appellant to present his case in writing, in the prescribed form, instead of orally. There is no equivalent provision in the civilian system and no form has been prescribed.

936.     Paragraph 30 substitutes a new section 27 of the 1968 Act, entitling the appellant to be present at the hearing of his appeal, unless the appellant is in custody and the hearing falls within the exceptions in subsection (2).

937.     Paragraph 38 substitutes a new section 37 of the 1968 Act requiring the Judge Advocate General to provide the registrar with a record of the proceedings in the Court Martial. The reference to a similar duty placed on the Defence Council, to whom a petition is no longer required to be presented, is therefore removed.

938.     Paragraph 39 amends section 38 of the 1968 Act by expressly placing the duty to defend any appeal on the Director of Service Prosecutions, rather than the Defence Council.

939.     Paragraph 42 substitutes a new section 43(1) of the 1968 Act and inserts new subsections (1A) and (1B). These amendments are consequential and allow the Court Martial Appeal Court to make an order for the defendant's detention or release on bail pending an appeal by the Director of Service Prosecutions to the Supreme Court.

940.     Paragraph 43 repeals section 46 of the 1968 Act which provided for the suspension of an order for the restitution of property pending an appeal from the Courts-Martial Appeal Court to the House of Lords. The Court Martial will not have the power to make such orders.

941.     Paragraph 44 amends section 47 of the 1968 Act to reflect the fact that it is now the Director of Service Prosecutions, rather than the Secretary of State, who makes an application for leave to appeal to the Supreme Court.

942.     Paragraph 49 substitutes a new section 56 of the 1968 Act, dealing with the application of the Act to prisoners of war. The Act continues to apply to prisoners of war courts-martial and the provisions of Schedule 3 of the Act are consolidated into the new section 56. Schedule 3 is consequently repealed (see paragraph 54).

943.     Paragraph 50 makes consequential amendments to the interpretation provisions in section 57.

944.     Paragraph 53 substitutes a new Schedule 1 of the 1968 Act containing provisions as to retrial. The Schedule makes provision in relation to the giving of evidence, the sentence available on conviction and the giving of credit for time spent in custody. The new Schedule 1 removes the separate provisions in respect of evidence and sentencing which were made for the Royal Navy, the Army and Royal Air Force respectively. The provisions on credit for time spent in custody are also simplified to reflect the equivalent provisions for civilian courts found in the Criminal Appeal Act 1968.

 
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Prepared: 6 December 2005