|
| |
|
and to related expressions, are to be read |
| |
| |
(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 |
| |
| |
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 |
| |
| |
| |
| 15 |
(b) | an interim hospital order; |
| |
(c) | a service supervision order (as defined by section 169 of the |
| |
| |
28 | In section 25B (disposal of appeals under section 25A)— |
| |
(a) | in subsections (1) and (2) for “court below” in each place substitute |
| 20 |
| |
(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 |
| |
| |
(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)— |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
(ii) | in paragraph (c) for “at the trial” substitute “in the |
| 5 |
proceedings from which the appeal lies”; |
| |
| |
(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 |
| |
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 |
| |
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) |
| |
| 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)— |
| |
| 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 |
| |
| 35 |
(iii) | for “the Judge Advocate of Her Majesty’s Fleet, the Judge |
| |
Advocate General” substitute “the Judge Advocate General”; |
| |
| |
(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”; |
| |
| |
(c) | after paragraph (c) insert— |
| |
“(ca) | to make orders, or impose requirements, under |
| |
| 45 |
(d) | in paragraph (g) omit the words from “and the power” to the end; |
| |
|
| |
|
| |
|
(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 |
| |
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 |
| |
| |
(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 |
| |
(b) | an order directing that, so long as any appeal to the |
| |
Supreme Court is pending, the accused is not to be |
| |
| |
(1B) | Where an order within subsection (1A)(b) is made, the |
| 40 |
Appeal Court may grant the accused bail pending the |
| |
| |
(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 |
|
| |
|
| |
|
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. |
| |
| |
(a) | after “unless the context otherwise requires,—” insert— |
| |
““the 2006 Act” means the Armed Forces Act 2006;”; |
| 30 |
(b) | omit the definitions of— |
| |
| |
“air force court-martial”; |
| |
| |
| 35 |
| |
| |
“the Judge Advocate General”; |
| |
| |
“the Naval Discipline Act”; |
| 40 |
| |
| |
| |
|
| |
|
| |
|
(c) | in the definition of “appellant” omit “has been tried by court-martial |
| |
| |
(d) | after the definition of “court-martial” (omitted by virtue of sub- |
| |
| |
““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— |
| |
| |
| |
| 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 |
| |
| |
(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 |
| |
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). |
| |
|
| |
|