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

217

 

and to related expressions, are to be read

accordingly).”

      (4)  

For subsection (3) substitute—

“(3)   

Where the Appeal Court quash a finding that the defendant did the

act or made the omission charged, the appellant is to be treated as if

5

he had been acquitted by the Court Martial; but this does not apply

if an order under subsection (2)(a) authorising the appellant to be

tried is made.”

27         

For section 25A (right of appeal against hospital order etc) substitute—

“25A    

Right of appeal against hospital order etc

10

(1)   

A person may, with the leave of the Appeal Court, appeal against the

making by the Court Martial of an order within subsection (2) in

respect of him.

(2)   

The orders are—

(a)   

a hospital order;

15

(b)   

an interim hospital order;

(c)   

a service supervision order (as defined by section 169 of the

2006 Act).”

28         

In section 25B (disposal of appeals under section 25A)—

(a)   

in subsections (1) and (2) for “court below” in each place substitute

20

“Court Martial”;

(b)   

in subsection (2) omit “under the Mental Health Act 1983”;

(c)   

for subsections (3) to (5) substitute—

“(3)   

Section 16(5) applies in relation to interim hospital orders

made by virtue of this section as it applies in relation to such

25

orders made by virtue of section 16.

(4)   

The fact that an appeal is pending against a service

supervision order (as defined by section 169 of the 2006 Act)

shall not affect any power conferred on any other court to

revoke or amend the order.”

30

29         

Omit section 26 (presentation of appellant’s case).

30         

For section 27 (presence of appellant at hearing) substitute—

“27     

Right of appellant to be present

(1)   

An appellant (whether or not in custody) is entitled to be present on

the hearing of his appeal.

35

(2)   

Subsection (1) does not apply to an appellant in custody—

(a)   

where his appeal is on a ground involving only a question of

law,

(b)   

on an application by him for leave to appeal, or

(c)   

on any proceedings preliminary or incidental to an appeal,

40

   

unless the Appeal Court give him leave to be present.”

31         

In section 28 (evidence)—

(a)   

in subsection (1)—

 

 

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

218

 

(i)   

in paragraph (b), for “at the trial” in the first place where it

occurs substitute “in the proceedings from which the appeal

lies” and in the second place where it occurs substitute “in

those proceedings”;

(ii)   

in paragraph (c) for “at the trial” substitute “in the

5

proceedings from which the appeal lies”;

(b)   

in subsection (2)—

(i)   

in paragraph (c) for “at the trial” substitute “in the

proceedings from which the appeal lies”;

(ii)   

in paragraph (d) for “at the trial” substitute “in those

10

proceedings”.

32         

In section 29 (power to call for report by member of trial court)—

(a)   

in the sidenote for “trial court” substitute “the Court Martial”;

(b)   

in subsection (1) for the words from “court-martial” to “trial,”

substitute “court in the proceedings from which the appeal lies”;

15

(c)   

omit subsection (2).

33         

In section 31 (costs of successful appeal) in subsection (2), for the words from

“case” to the end substitute “proceedings (in the Appeal Court and below).”

34         

In section 32 (costs against appellant) in subsection (2) for paragraph (b)

substitute—

20

“(b)   

if the appellant or applicant is a member of the regular or

reserve forces (as defined by section 367 of the 2006 Act), by

making deductions from pay due to him,”.

35         

In section 33 (witnesses’ expenses) after subsection (1) insert—

“(1A)   

Subsection (1) applies in relation to a registered medical practitioner

25

who makes a written report to the Appeal Court in pursuance of a

request made by the court as it applies in relation to a person who is

called to give evidence at the instance of the court.”

36         

In section 34 (reference of cases by service authorities)—

(a)   

in subsection (1)—

30

(i)   

for “court-martial” in the first place where it occurs substitute

“the Court Martial” and in the other three places where it

occurs substitute “Court Martial”;

(ii)   

in paragraph (a) omit “the Judge Advocate of Her Majesty’s

Fleet or”;

35

(iii)   

for “the Judge Advocate of Her Majesty’s Fleet, the Judge

Advocate General” substitute “the Judge Advocate General”;

(b)   

omit subsection (3);

(c)   

in subsection (4) for “a court-martial” substitute “the Court Martial”.

37         

In section 36 (powers exercisable by single judge) in subsection (1)—

40

(a)   

omit “under this Part of this Act”;

(b)   

omit paragraph (a);

(c)   

after paragraph (c) insert—

“(ca)   

to make orders, or impose requirements, under

section 20(1E);”;

45

(d)   

in paragraph (g) omit the words from “and the power” to the end;

 

 

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

219

 

(e)   

after paragraph (h) insert—

“(i)   

to give a direction under section 3(4) of the Sexual

Offences (Amendment) Act 1992 (direction

disapplying provision as to anonymity of victim);

(j)   

to give leave under section 14(4B) of the Criminal

5

Appeal Act 1995 (leave to add grounds of appeal on

reference by Criminal Cases Review Commission);”.

38         

In section 36C (appeals against procedural directions) in subsection (5)(b)—

(a)   

for “Defence Council” substitute “Director of Service Prosecutions”;

(b)   

for “Defence Council’s” substitute “Director of Service

10

Prosecutions’”.

39         

For section 37 (provision of documents relating to trial) substitute—

“37     

Provision of record of proceedings of the Court Martial

In the case of every appeal or application for leave to appeal to the

Appeal Court, the Judge Advocate General must provide the

15

registrar, in accordance with rules of court, with a record of the

proceedings of the Court Martial.”

40         

In section 38 (defence of appeals) for “Defence Council” substitute “Director

of Service Prosecutions”.

41         

For the heading to Part 3 substitute “APPEAL FROM COURT MARTIAL

20

APPEAL COURT TO SUPREME COURT”.

42         

In section 39 (right of appeal to Supreme Court) in subsection (1) for

“Defence Council” substitute “Director of Service Prosecutions”.

43         

In section 43 (detention of accused)—

(a)   

for subsection (1) substitute—

25

“(1)   

The Appeal Court may make an order under this section

where—

(a)   

but for the decision of the Appeal Court, the accused

would be liable to be detained; and

(b)   

immediately after that decision, the Director of

30

Service Prosections is granted leave to appeal or gives

notice that he intends to apply for leave to appeal.

(1A)   

An order under this section is—

(a)   

an order providing for the detention of the accused so

long as any appeal to the Supreme Court is pending;

35

or

(b)   

an order directing that, so long as any appeal to the

Supreme Court is pending, the accused is not to be

released except on bail.

(1B)   

Where an order within subsection (1A)(b) is made, the

40

Appeal Court may grant the accused bail pending the

appeal.”;

(b)   

in subsection (4) for “Mental Health (Scotland) Act 1984” substitute

“Mental Health (Care and Treatment) (Scotland) Act 2003”.

44         

Omit section 46 (restitution of property).

45

 

 

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

220

 

45         

In section 47 (costs)—

(a)   

in subsection (1) for “Secretary of State” in the first place where it

occurs substitute “Director of Service Prosecutions”;

(b)   

in subsection (3) for the words from “case up to” to the end substitute

“proceedings (in the Supreme Court and below).”

5

46    (1)  

Section 48A (appeals on behalf of deceased persons) is amended as follows.

      (2)  

In subsection (1)(b) after “above” insert “or by a reference by the Criminal

Cases Review Commission”.

      (3)  

In subsection (3)(c) for “Court of Appeal” substitute “Appeal Court”.

      (4)  

In subsection (4) at the beginning insert “Except in the case of an appeal

10

begun by a reference by the Criminal Cases Review Commission,”.

47         

In section 50 (duties of registrar with respect to appeals etc)—

(a)   

in subsection (1) for “court-martial by which the appellant or

applicant was tried” substitute “Court Martial”;

(b)   

in subsection (2) for “court-martial” substitute “the Court Martial”.

15

48         

In section 52 (removal of prisoners) for paragraphs (a) to (c) substitute—

“(a)   

section 298 of the 2006 Act;”.

49         

In section 54 (saving for prerogative) in subsection (1) for “court-martial”

substitute “the Court Martial”.

50         

For section 56 substitute—

20

“56     

Modifications for protected prisoners of war

As respects a protected prisoner of war (as defined by section 7(1) of

the Geneva Conventions Act 1957), this Act applies in relation to a

prisoner of war court-martial constituted under a Royal Warrant as

it applies in relation to the Court Martial, subject to such

25

modifications as may be contained in the Royal Warrant.”

51    (1)  

Section 57 (interpretation) is amended as follows.

      (2)  

In subsection (1)—

(a)   

after “unless the context otherwise requires,—” insert—

““the 2006 Act” means the Armed Forces Act 2006;”;

30

(b)   

omit the definitions of—

“the Air Force Act”;

“air force court-martial”;

“the Army Act”;

“army court-martial”;

35

“court-martial”;

“duly approved”;

“the Judge Advocate General”;

“judicial officer”;

“the Naval Discipline Act”;

40

“naval court-martial”;

“restriction order”;

“supervision order”;

 

 

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

221

 

(c)   

in the definition of “appellant” omit “has been tried by court-martial

and”;

(d)   

after the definition of “court-martial” (omitted by virtue of sub-

paragraph (b)) insert—

““Director of Service Prosecutions” has the meaning

5

given by section 367 of the 2006 Act;”.

      (3)  

Omit subsections (2) to (2B).

      (4)  

In subsection (3) for the words from “the accused in the court-martial” to the

end substitute “the appellant in the Appeal Court.”

52         

Omit section 58 (consequential amendments).

10

53         

In section 61 (short title and commencement), in subsection (1) for “Courts-

Martial (Appeals) Act 1968” substitute “Court Martial Appeals Act 1968”.

54         

For Schedule 1 (provisions as to retrial) substitute—

“Schedule 1

Section 20

 

Provisions as to Retrial

15

1          

This Schedule applies where an order under section 19 is made

authorising the retrial of a person.

2          

Evidence given at the retrial must be given orally if it was given

orally at the original trial, unless—

(a)   

all parties to the retrial agree otherwise;

20

(b)   

section 116 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is

unavailable); or

(c)   

the witness is unavailable to give evidence, otherwise than

as mentioned in subsection (2) of that section, and section

25

114(1)(d) of that Act applies (admission of hearsay

evidence under residual discretion).

3          

If the person is convicted on the retrial, the Court Martial may not

pass a sentence that is (or sentences that, taken together, are) more

severe than the sentence (or the sentences, taken together) passed

30

at the original trial.

4          

In sections 245 and 246 of the 2006 Act (crediting of time in service

custody) as they apply in relation to the retrial, references to the

offender being kept in service custody include references to his

being kept in custody (whether service or otherwise) in pursuance

35

of a sentence passed at the original trial.”

55         

Omit Schedule 3 (modifications in relation to prisoners of war).

56         

Omit Schedule 4 (consequential amendments).

 

 

 
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