Armed Forces Bill

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Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968
210

enabling him to appeal against the order as if he
had been so convicted.
      (4)
For the purposes of any appeal against the order,
references in section 16A of the Court Martial Appeals Act
1968 to passing a sentence include making an order.”
5
      (2)
Where an order under paragraph 8(2)(a) or (b) of that Schedule is made by
the Crown Court in relation to a suspended sentence passed by a relevant
service court, paragraph 9 of that Schedule has effect as if for sub-paragraph
(3) there were substituted—
    “(3)
For the purposes of any enactment conferring rights of appeal
10
against sentence in criminal cases—
(a)
an order made by the Crown Court under paragraph
8(2)(a) or (b) is to be treated as a sentence passed on the
offender by the Crown Court for the offence for which the
suspended sentence was passed; and
15
(b)
the offender is to be treated as if he had been convicted on
indictment of that offence.”
Schedule 8
Section 271

Amendment of the Courts-Martial (Appeals) Act 1968
1
The Courts-Martial (Appeals) Act 1968 (c. 20) is amended as follows.
20
2
For the heading to Part 1 substitute “THE COURT MARTIAL APPEAL
COURT”.
3
In section 1(1) (the court) for the words from the beginning to “air-force
courts-martial,” substitute “The Court Martial Appeal Court”.
4
In section 4 (sittings) omit subsection (2).
25
5
In section 5 (constitution of court for particular sittings), in subsection
(3)(a)(iii) at the end insert “or that the defendant did the act or made the
omission charged against him”.
6
For the heading to Part 2 substitute “APPEALS FROM THE COURT
MARTIAL”.
30
7
In section 8 (right of appeal against conviction or sentence)—
(a)
in subsection (1)—
(i)
for “court-martial” substitute “the Court Martial”;
(ii)
in paragraph (b) at the end add “, whether passed on
conviction or in subsequent proceedings”;
35
(b)
omit subsections (1A) to (4).
8
Omit section 10 (alternative procedure for appeal from court-martial
abroad).
9
In section 11(1) (consideration of application by Appeal Court) omit “the
Judge Advocate of Her Majesty’s Fleet or”.
40
10
In section 12 (power to quash conviction as unsafe)—

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968
211

(a)
in subsection (1)(a) for “court-martial” substitute “the Court
Martial”;
(b)
after subsection (2) add—
“(3)
Where the Appeal Court quash a conviction, the appellant is
to be treated as if he had been acquitted by the Court Martial;
5
but this does not apply if an order under section 19
authorising the appellant to be retried is made.”
11
For section 13 (adjustment of sentence in case of conviction on two or more
charges) substitute—
“13
Power to re-sentence when some but not all convictions successfully
10
appealed
(1)
This section applies where—
(a)
on a single occasion a person is sentenced by the Court
Martial in respect of two or more offences; and
(b)
the Appeal Court allow an appeal against conviction in
15
respect of some but not all of the offences.
(2)
The Court may in respect of any offence of which the appellant
remains convicted pass, in substitution for the sentence passed by
the Court Martial, any sentence that—
(a)
they think appropriate; and
20
(b)
is a sentence that the Court Martial had power to pass.
(3)
But the Court may not exercise their powers under subsection (2) in
such a way that the appellant’s sentences (taken together) for all the
offences of which he remains convicted are more severe than the
sentences (taken together) passed on him by the Court Martial on the
25
occasion mentioned in subsection (1)(a).
(4)
The reference in subsection (3) to the sentences passed by the Court
Martial includes those passed by that court in respect of offences as
respects which appeals against conviction have been allowed.”
12    (1)
Section 14 (substitution of conviction on different charge) is amended as
30
follows.
      (2)
In the sidenote, at the end add “otherwise than after guilty plea”.
      (3)
For subsection (1) substitute—
“(1)
This section applies where—
(a)
an appellant has been convicted of an offence to which he did
35
not plead guilty;
(b)
the Court Martial could lawfully have found him guilty of
some other offence; and
(c)
it appears to the Appeal Court on an appeal against
conviction that the Court Martial must have been satisfied of
40
facts which prove him guilty of that other offence.”
      (4)
In subsection (2)—
(a)
for “court-martial” in both places substitute “Court Martial”;
(b)
for the words from “such sentence as” to the end substitute “any

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968
212

sentence that—
(a)
they think appropriate;
(b)
is a sentence that the Court Martial would have had
power to pass in respect of that other offence; and
(c)
is not more severe than the sentence passed by the
5
Court Martial.”
13
In section 14A (substitution of conviction on different charge after guilty
plea), in subsection (2) for the words from “court-martial” to the end
substitute “Court Martial, any sentence that—
(a)
they think appropriate;
10
(b)
is a sentence that the Court Martial would have had power to
pass in respect of that other offence; and
(c)
is not more severe than the sentence passed by the Court
Martial.”
14
Omit section 15 (variation of conviction so as to attract different sentence).
15
15
In section 16 (substitution of finding of insanity etc)—
(a)
in subsection (1) after “are of” insert “the”;
(b)
for subsections (2) to (4) substitute—
“(1A)
The Appeal Court shall, instead of allowing or dismissing the
appeal, substitute for the finding appealed against—
20
(a)
a finding of not guilty by reason of insanity; or
(b)
findings that the appellant was unfit to stand trial and
that he did the act or made the omission charged
against him.
(2)
Sections 168(2) to (5) and 169 of, and Schedule 4 to, the 2006
25
Act apply (with any necessary modifications) in relation to
the Appeal Court as they apply in relation to the Court
Martial in a case in which section 168 of that Act applies.
(3)
Section 171 of that Act (meaning of “duly approved” etc)
applies for the purposes of this section (and references there
30
to the defendant are to be read as references to the
appellant).”;
(c)
in subsection (5) for “a judicial officer” in both places substitute “the
Court Martial”;
(d)
omit subsection (6).
35
16
For section 16A (powers on appeals against sentence) substitute—
“16A
Appeals against sentence
(1)
Where, on a single occasion, the Court Martial passes two or more
sentences on a person, an appeal or application for leave to appeal
against any of those sentences is to be treated as an appeal or
40
application in respect of both or all of them.
(2)
On an appeal against sentence the Appeal Court may quash the
sentence passed by the Court Martial and pass in substitution for it
any sentence that—
(a)
they think appropriate; and
45

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968
213

(b)
is a sentence that the Court Martial had power to pass in
respect of the offence.
(3)
But the Court may not exercise their powers under subsection (2) in
such a way that, taking the case as a whole, the appellant is dealt with
more severely on appeal than he was dealt with by the Court
5
Martial.”
17
In section 17 (sentences passed by the Appeal Court)—
(a)
in the sidenote for “or 15” substitute “, 14A or 16A”;
(b)
for subsection (1) substitute—
“(1)
Unless the Court otherwise direct, a sentence passed by the
10
Appeal Court under section 13, 14, 14A or 16A takes effect
from the beginning of the day on which the Court Martial
passed sentence.”;
(c)
omit subsection (2).
18
Omit section 17A (application of certain provisions of SDAs in relation to
15
appeals by civilians).
19
Omit section 18 (retrial generally excluded).
20
In section 19 (power to authorise retrial in certain cases)—
(a)
in subsection (1) for “court-martial” substitute “the Court Martial”;
(b)
in subsection (2) for the words from “the restrictions” to the end
20
substitute “section 63 of the 2006 Act (service proceedings barring
subsequent service proceedings).”;
(c)
in subsection (3)—
(i)
for the words from the beginning to “other than” substitute
“An order under this section may authorise the appellant to
25
be retried for”;
(ii)
in paragraph (a) for “original court-martial” substitute
“Court Martial”;
(iii)
in paragraph (b) for “at the original court-martial” substitute
“by the Court Martial”;
30
(iv)
in paragraph (c) for “court-martial” substitute “Court
Martial”;
(d)
in subsection (4) for the words from “but whether” to the end
substitute “if any such direction is made the Director of Service
Prosecutions must bring the charge or charges so specified (which
35
are to be regarded for the purposes of Part 5 of the 2006 Act as
allocated for Court Martial trial).”;
(e)
after that subsection add—
“(5)
Section 124 of the 2006 Act (powers of DSP after charge) has
effect in relation to a charge on which a person is to be retried
40
under this section (whether or not a fresh charge) subject to
such modifications as may be contained in Court Martial
rules (within the meaning of that Act).”
21
In section 20 (implementation of authority for retrial etc)—
(a)
for subsection (1) substitute—
45
“(1)
Where—

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968
214

(a)
an order under section 19 authorising the retrial of a
person has been made, and
(b)
the person has not been arraigned (in pursuance of
the order) within three months beginning with the
date of the order,
5

the person may not be arraigned unless the Appeal Court
give leave.
(1A)
A person who may not be arraigned without the leave of the
Appeal Court may apply to the Court to set aside the order
under section 19.
10
(1B)
On an application under subsection (1) or (1A) the Appeal
Court may—
(a)
grant leave to arraign; or
(b)
set aside the order under section 19.
(1C)
But leave to arraign may be granted only if the Appeal Court
15
are satisfied—
(a)
that the prosecution has acted with all due
expedition; and
(b)
that there is a good and sufficient reason for a retrial
in spite of the lapse of time since the order under
20
section 19 was made.
(1D)
Where an order under section 19 authorising the retrial of a
person for an offence is set aside, the person is to be treated
as if he had been acquitted by the Court Martial of the
offence.
25
(1E)
Where the Appeal Court authorise the retrial of a person they
may—
(a)
by order authorise the keeping of that person in
service custody—
(i)
for such period, ending not later than 8 days
30
after the date the order is made, as the Court
think appropriate; or
(ii)
if the person is legally represented and
consents, for such period, not exceeding 28
days, as the Court think appropriate; or
35
(b)
require that person to comply with such requirements
as seem to the Court to be necessary for a purpose
mentioned in section 107(3) of the 2006 Act.
(1F)
Where the person is in service custody the Appeal Court may
under subsection (1E)(b) impose a requirement that must be
40
complied with before the person may be released.
(1G)
An order under subsection (1E)(a) is to be treated, for the
purposes of Part 4 of the 2006 Act, as made under section
105(2) of that Act.
(1H)
A requirement imposed under subsection (1E)(b) is to be
45
treated, for the purposes of Part 4 of the 2006 Act, as imposed
under section 107(3) of that Act (and, where appropriate, by
virtue of section 107(3)(a) of that Act).”;

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968
215

(b)
after subsection (2) insert—
“(2A)
In subsection (2) “relevant time” means—
(a)
where arraignment takes place within the three
months referred to in subsection (1)—
(i)
if the defendant is convicted on his retrial, the
5
end of 28 days beginning with the date of
conviction;
(ii)
otherwise, the time when the case is finally
disposed of;
(b)
where arraignment does not take place within those
10
three months, the end of those three months.”;
(c)
in subsection (3)—
(i)
for “a direction” substitute “an order or direction”;
(ii)
after “that” insert “order or”;
(d)
after that subsection insert—
15
“(3A)
In subsection (3) “relevant time” means—
(a)
where arraignment takes place within the three
months referred to in subsection (1), the time when
the case is finally disposed of;
(b)
otherwise, the end of those three months.”;
20
(e)
in subsection (4) for “Part VI of the Mental Health (Scotland) Act
1984” substitute “the Mental Health (Care and Treatment) (Scotland)
Act 2003”;
(f)
omit subsection (5);
(g)
in subsection (6) omit the words from “of this Act” to the end.
25
22
In section 21 (appeal against finding of not guilty by reason of insanity)—
(a)
in subsection (1)—
(i)
for “court-martial” substitute “the Court Martial”;
(ii)
omit the words from “; and in relation to” to the end;
(b)
after that subsection insert—
30
“(1A)
On an appeal under this section the Appeal Court—
(a)
shall (subject to subsection (2)) allow the appeal if
they think the finding is unsafe; and
(b)
shall dismiss the appeal in any other case.
(1B)
Sections 19 and 20 and paragraph 2 of Schedule 1 apply in
35
relation to appeals under this section as they apply in relation
to appeals against conviction (and references there to
conviction, and to related expressions, are to be read
accordingly).”;
(c)
in subsection (2) before “opinion” insert “the”.
40
23
In section 22 (consequences where appeal under section 21 allowed)—
(a)
in subsection (2)—
(i)
before “opinion” insert “the”;
(ii)
for “court-martial” in both places substitute “Court Martial”;
(b)
in subsection (3)—
45
(i)
for “court-martial which tried him” substitute “Court
Martial”;

Armed Forces Bill
Schedule 8 — Amendment of the Courts-Martial (Appeals) Act 1968
216

(ii)
for the words “section 13, 14 or 15 of this Act” substitute “a
provision mentioned in section 17(1)”;
(c)
for subsection (4) substitute—
“(3A)
If the Appeal Court, on the written or oral evidence of two or
more registered medical practitioners at least one of whom is
5
duly approved, are of the opinion mentioned in section
16(1)(b) (court below ought to have found defendant unfit to
stand trial etc)—
(a)
the Court shall substitute for the finding of the Court
Martial findings that the appellant was unfit to stand
10
trial and that he did the act or made the omission
charged against him; and
(b)
section 16(2) to (5) apply as they apply for the
purposes of section 16.
(3B)
Section 171 of the 2006 Act (meaning of “duly approved” etc)
15
applies for the purposes of subsection (3A) (and references
there to the defendant are to be read as references to the
appellant).
(4)
If the case is not within subsection (2) or (3A), the Appeal
Court must quash the finding appealed against.
20
(5)
Where the Appeal Court quash a finding of not guilty by
reason of insanity, the appellant is to be treated as if he had
been acquitted by the Court Martial; but this does not apply
if an order under section 19 authorising the appellant to be
retried is made.”
25
24
Omit section 23 (substitution of finding of unfitness to stand trial etc).
25
In section 24 (appeal against finding of unfitness)—
(a)
in subsection (1) for “a court-martial” substitute “the Court Martial”;
(b)
omit subsection (2).
26    (1)
Section 25 (disposal of appeals under section 24) is amended as follows.
30
      (2)
After subsection (1) insert—
“(1A)
The Appeal Court—
(a)
shall allow an appeal against a finding if they think the
finding is unsafe; and
(b)
shall dismiss such an appeal in any other case.
35
(1B)
If the Appeal Court allow an appeal against a finding they shall
quash the finding.”
      (3)
In subsection (2)—
(a)
for “allow an appeal against” substitute “quash”;
(b)
in paragraph (a) for “appellant may be tried accordingly” substitute
40
“Court may make an order authorising the appellant to be tried”;
(c)
for paragraph (b) substitute—
“(b)
if such an order is made, section 20 and paragraph 2
of Schedule 1 apply in relation to the case as they
apply in relation to a case in which an order under
45
section 19 is made (and references there to conviction,