Armed Forces Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

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.