|
| |
|
(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 |
| |
| 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. |
| |
| |
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. |
| |
| | | | | | | | | 20 | | | | | | | | | | | | | | | dismissal with disgrace from |
| | | | | | | | | | | | dismissal from Her Majesty’s |
| | | 25 | | | | | | | | | | not if the person being sentenced is an |
| | | | | | | | | | | forfeiture of a specified term of |
| only if the person being sentenced is |
| | | | | seniority or of all seniority |
| | | 30 | | | 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) |
| | | | | | | | 35 | | | a service community order |
| only if the person being sentenced is |
| | | | | | on the same occasion sentenced to |
| | | | | | dismissal or dismissal with disgrace |
| | | | | | and subsection (5) permits |
| | |
|
|
| |
|
| |
|
| | | | | | | | | | | | | | | | | | | only if the person being sentenced is |
| | | | | | an officer, warrant officer or non- |
| | 5 | | | | | | | | | a service supervision and |
| only if the person being sentenced is |
| | | | | punishment order (defined by |
| an able rate, marine, soldier or airman |
| | | | | | | | | | | such minor punishments as |
| | | 10 | | | | | | | | | authorised by regulations |
| | | | | | made by the Defence Council |
| | | | | | a service compensation order |
| | | | | | | | | 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 |
| |
| |
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 |
| |
| |
(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 |
| |
| |
(6) | Where regulations under row 11 of the Table authorise a minor punishment, |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
164 | Sentencing powers of Court Martial where election for trial by that court |
| |
| |
(1) | This section applies where a person is convicted by the Court Martial of a |
| |
| |
(2) | For the purposes of this section an offence is “relevant” if the charge in respect |
| 5 |
| |
(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. |
| |
| |
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 |
| |
| |
(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 |
| |
(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 |
| |
|
| |
|
| |
|
at least one of whom is duly approved within the meaning given by section |
| |
| |
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 |
| |
| |
(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) |
| |
| |
(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. |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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— |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
| |
(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. |
| |
| |
“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 |
| |
| |
(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 |
| |
(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 |
| |
| |
(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. |
| |
|
| |
|