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Armed Forces Bill


Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 3 — Punishments Available to Court Martial

79

 

(a)   

in circumstances substantially different from those in which

indictments are amendable by the Crown Court; or

(b)   

otherwise than subject to conditions which correspond, as nearly as

circumstances permit, to those subject to which indictments are so

amendable.

5

(7)   

Court Martial rules may apply, with or without modifications, any enactment

or subordinate legislation (whenever passed or made), including any

provision made by or under this Act.

(8)   

Rules made by virtue of paragraph (h) of subsection (3) may confer jurisdiction

on the Court Martial Appeal Court, and rules under section 49 of the Court

10

Martial Appeals Act 1968 may make provision about the powers of that court

in relation to appeals made by virtue of that paragraph.

Chapter 3

Punishments Available to Court Martial

163     

Punishments available to Court Martial

15

(1)   

The second column of the following Table lists the punishments that may be

awarded by sentence of the Court Martial, subject in the case of each

punishment to any limitation shown in the third column opposite it.

 

TABLE

 
 

Row

Punishment

Limitation

 

20

 

Number

   
 

1

imprisonment

  
 

2

dismissal with disgrace from

  
  

Her Majesty’s service

  
 

3

dismissal from Her Majesty’s

  

25

  

service

  
 

4

detention for a term not

not if the person being sentenced is an

 
  

exceeding two years

officer

 
 

5

forfeiture of a specified term of

only if the person being sentenced is

 
  

seniority or of all seniority

an officer

 

30

 

6

reduction in rank, or disrating

only if the person being sentenced is a

 
   

warrant officer or non-commissioned

 
   

officer, and not to an extent prohibited

 
   

by regulations under subsection (4)

 
 

7

a fine

  

35

 

8

a service community order

only if the person being sentenced is

 
  

(defined by section 177)

on the same occasion sentenced to

 
   

dismissal or dismissal with disgrace

 
   

and subsection (5) permits

 
 
 

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 3 — Punishments Available to Court Martial

80

 
 

TABLE

 
 

Row

Punishment

Limitation

 
 

Number

   
 

9

a severe reprimand or a

only if the person being sentenced is

 
  

reprimand

an officer, warrant officer or non-

 

5

   

commissioned officer

 
 

10

a service supervision and

only if the person being sentenced is

 
  

punishment order (defined by

an able rate, marine, soldier or airman

 
  

section 172)

  
 

11

such minor punishments as

  

10

  

may from time to time be

  
  

authorised by regulations

  
  

made by the Defence Council

  
 

12

a service compensation order

  
  

(defined by section 174)

  

15

 

(2)   

Where this Act provides that a person guilty of a particular offence is liable to

any punishment mentioned in the Table or in specified rows of the Table, it

means he is liable to any one or more of the punishments so mentioned (subject

in the case of each one to any limitation shown in the third column opposite it).

(3)   

The previous provisions of this section are subject to (in particular)—

20

section 164 (offender elected Court Martial trial);

Chapters 4 to 6 of Part 8 (imprisonment for under 12 months, young

offenders’ custodial sentences, and mandatory etc sentences for serious

offences); and

Part 9 (general provisions about sentencing).

25

(4)   

The Defence Council may by regulations restrict the extent to which persons of

a description specified in the regulations may be reduced in rank or disrated

under this section.

(5)   

The court may not make a service community order unless—

(a)   

the offender is aged 18 or over when convicted; and

30

(b)   

it appears to the court that he will reside in the United Kingdom when

the order is in force.

(6)   

Where regulations under row 11 of the Table authorise a minor punishment,

they may—

(a)   

confer on the Court Martial a power, when awarding the punishment,

35

to direct that the punishment shall take effect from a date after the date

of the award;

(b)   

confer on the offender’s commanding officer the function of deciding

the details of the punishment;

(c)   

provide for the delegation by the commanding officer of any of his

40

functions under the regulations.

(7)   

This section is modified in relation to certain offenders by Schedule 3 (civilians

etc).

 
 

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity

81

 

164     

Sentencing powers of Court Martial where election for trial by that court

instead of CO

(1)   

This section applies where a person is convicted by the Court Martial of a

relevant offence.

(2)   

For the purposes of this section an offence is “relevant” if the charge in respect

5

of it is—

(a)   

a charge as regards which the person elected Court Martial trial under

section 128 (whether or not the charge was amended after election); or

(b)   

a charge substituted for a charge within paragraph (a).

(3)   

Where the person is convicted of a single relevant offence, the sentence passed

10

in respect of it must be such that the commanding officer could have awarded

the punishments awarded by that sentence if he had heard the charge

summarily and had recorded a finding that the charge had been proved.

(4)   

Where the person is convicted of two or more relevant offences in the same

proceedings, the sentences passed in respect of them must be such that the

15

commanding officer could have awarded the punishments awarded by those

sentences if he had heard the charges, together, summarily and had recorded

findings that they had been proved.

(5)   

References in subsections (3) and (4) to the commanding officer are to the

commanding officer who would have heard the charge or charges if no election

20

under section 128 had been made.

Chapter 4

Findings of Unfitness to Stand Trial and Insanity

165     

Fitness to stand trial

(1)   

This section applies where on a trial by the Court Martial the question arises (at

25

the instance of the defence or otherwise) whether the defendant is fit to stand

trial.

(2)   

For the purposes of this Act a person is unfit to stand trial if he is under a

disability such that apart from the Criminal Procedure (Insanity) Act 1964

(c. 84) it would constitute a bar to his being tried on indictment in England and

30

Wales.

(3)   

Subject to subsections (5) and (6), the question of fitness to stand trial must be

determined as soon as it arises.

(4)   

The question of fitness to stand trial is to be determined by the judge advocate.

(5)   

If having regard to the nature of the supposed disability the judge advocate is

35

of the opinion that it is expedient to do so and in the interests of the defendant,

he may postpone consideration of the question of fitness to stand trial until any

time up to the opening of the case for the defence.

(6)   

If before the question of fitness to stand trial falls to be determined the court

finds the defendant not guilty on the charge or each of the charges on which he

40

is being tried, that question shall not be determined.

(7)   

A judge advocate may not make a determination under subsection (4) except

on the written or oral evidence of two or more registered medical practitioners

 
 

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity

82

 

at least one of whom is duly approved within the meaning given by section

171.

166     

Finding that defendant did the act or made the omission charged

(1)   

This section applies where in accordance with section 165(4) it is determined

by the judge advocate that the defendant is unfit to stand trial.

5

(2)   

The trial shall not proceed or further proceed but the court must, as respects

the charge or each of the charges on which the defendant was to be or was

being tried, determine whether it is satisfied that he did the act charged against

him as the offence.

(3)   

If as respects that charge or any of those charges the court is so satisfied, it must

10

make a finding that the defendant did the act charged against him.

(4)   

If as respects that charge or any of those charges the court is not so satisfied, it

must find the defendant not guilty as if on the charge in question the trial had

proceeded to a conclusion.

(5)   

A determination under subsection (2) must be made—

15

(a)   

on the evidence (if any) already given in the trial; and

(b)   

on such evidence as may be adduced or further adduced by the

prosecution, or adduced by a person appointed under this section by

the judge advocate to put the case for the defence.

(6)   

Section 159 (Court Martial decisions) does not apply to a determination or

20

finding under this section, but as respects any charge to which subsection (2)

above applies—

(a)   

the question whether the court is satisfied as mentioned in that

subsection is to be determined by the members of the court other than

the judge advocate (“the lay members”); and

25

(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.

(7)   

In this section “act” includes an omission and references to the doing of an act

are to be read accordingly.

167     

Findings of insanity

30

(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

(b)   

at the time of that act he was insane.

35

(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

is duly approved within the meaning given by section 171.

40

(4)   

Section 159 (Court Martial decisions) does not apply to a determination or

finding under this section, but—

 
 

Armed Forces Bill
Part 7 — Trial by Court Martial
Chapter 4 — Findings of Unfitness to Stand Trial and Insanity

83

 

(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

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

(5)   

In this section “act” includes an omission and references to the doing of an act

are to be read accordingly.

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

10

charged against him; or

(b)   

the defendant is found not guilty by reason of insanity.

(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;

15

(b)   

a service supervision order (defined by section 169); or

(c)   

an order discharging him absolutely.

(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;

20

“restriction order” means an order under section 41 of that Act as so

modified.

(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.

25

(5)   

Where—

(a)   

the finding mentioned in subsection (1) relates to an offence the

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

30

would have power to make a restriction order apart from this subsection).

(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

35

(b)   

in a case where that judge advocate has made an interim hospital order

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.

40

(8)   

Schedule 4 (modifications of the 1983 Act) has effect.

 
 

 
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Revised 28 April 2006