Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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(a) omit "under this Part of this Act";

(b) omit paragraph (a);

" (ca) to make orders, or impose requirements, under section 20(1E); " ;

(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 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 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 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 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--

" (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 Service Prosecutions 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; 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 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 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)."

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 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".

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

" (a) section 300 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--

" 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 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; " ;

(b) omit the definitions of--

"the Air Force Act";
"air force court-martial";
"the Army Act";
"army court-martial";
"court-martial";
"duly approved";
"the Judge Advocate General";
"judicial officer";
"the Naval Discipline Act";
"naval court-martial";
"restriction order";
"supervision order";

(d) after the definition of "court-martial" (omitted by virtue of sub-paragraph (b)) insert--

" "Director of Service Prosecutions" has the meaning given by section 374 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).

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--

Section 20

" SCHEDULE 1 Provisions as to Retrial

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;

(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 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 at the original trial.

4 In sections 246 and 247 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 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).

Section 276

SCHEDULE 9 Assessors of compensation for miscarriages of justice

1 (1) A person is qualified for appointment as an assessor for the purposes of section 276 if he--

(a) has a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) is an advocate or solicitor in Scotland;

(c) is a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, of at least seven years' standing;

(d) holds or has held judicial office in any part of the United Kingdom;

(e) is a member (whether the chairman or not) of the Criminal Injuries Compensation Board; or

(f) has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, has had those rights and duties for at least seven years, and is subject to punishment or disability for breach of professional rules.

(2) In this paragraph "relevant territory" means--

(a) any of the Channel Islands;

(b) the Isle of Man;

(d) a British overseas territory.

2 A person shall hold and vacate office as an assessor in accordance with the terms of his appointment.

3 A person shall vacate office as an assessor--

(a) if he ceases to be qualified for appointment as an assessor, or

(b) on attaining the age of 72,

unless the Secretary of State considers that it is in the interests of the efficient operation of section 276 that he should continue to hold office.

4 A person may at any time resign his office as an assessor by notice in writing given to the Secretary of State.

5 Subject to paragraph 6, the Secretary of State may at any time remove a person from office as an assessor if satisfied that--

(a) he has been convicted of a criminal offence;

(b) he has become bankrupt, has made an arrangement with his creditors, has had his estate sequestrated or has granted a trust deed for his creditors or a composition contract; or

6 (1) The exercise of the power conferred by paragraph 5 is subject to the following provisions of this paragraph.

(2) In the case of a person who qualifies for appointment under--

(a) paragraph 1(1)(a), or

(b) paragraph 1(1)(d) by virtue of holding or having held judicial office in England and Wales,

that power shall only be exercisable with the consent of the Lord Chancellor, which may only be given with the concurrence of the Lord Chief Justice of England and Wales.

(3) In the case of a person who qualifies for appointment under--

(a) paragraph 1(1)(b), or

(b) paragraph 1(1)(d) by virtue of holding or having held judicial office in Scotland,

that power shall only be exercisable with the consent of the Lord President of the Court of Session.

(4) In the case of a person who qualifies for appointment under--

(a) paragraph 1(1)(c), or

(b) paragraph 1(1)(d) by virtue of holding or having held judicial office in Northern Ireland,

that power shall only be exercisable with the consent of the Lord Chancellor, which may only be given with the concurrence of the Lord Chief Justice of Northern Ireland.

7 An assessor shall be paid such remuneration and allowances as the Secretary of State may determine.

Section 278

SCHEDULE 10 Proceedings of the Service Civilian Court

Court to sit in public

1 Subject to any provision made by SCC rules, the Service Civilian Court must sit in open court.

Unfitness to stand trial and insanity

2 Where on a trial of a charge by the Service Civilian Court any question arises (whether at the instance of the defence or otherwise)--

(a) whether the defendant is fit to stand trial, or

(b) where it appears that the defendant did the act or made the omission charged against him as the offence, whether he was insane at the time of the act or omission,

the court must refer the charge to the Court Martial for trial by that court.

Privilege of witnesses and others

3 A witness before the Service Civilian Court or any other person whose duty it is to attend the court is entitled to the same immunities and privileges as a witness before a magistrates' court in England or Wales.

Section 321

SCHEDULE 11 Powers of the Criminal Cases Review Commission

Amendment of the Court Martial Appeals Act 1968

1 After section 29 of the Court Martial Appeals Act 1968 insert--

" 29A Power to order investigation by Criminal Cases Review Commission

(1) On an appeal against conviction or an application for leave to appeal against conviction, the Appeal Court may direct the Criminal Cases Review Commission to investigate and report to the Court on any matter if it appears to the Court that--

(a) in the case of an appeal, the matter is relevant to the determination of the appeal and ought, if possible, to be resolved before the appeal is determined;

(b) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;

(d) the matter cannot be resolved by the Court without an investigation by the Commission.

(2) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 36 of this Act.

(3) A direction by the Appeal Court under subsection (1) above shall be given in writing and shall specify the matter to be investigated.

(4) Copies of such a direction shall be made available to the appellant and the respondent.

(5) Where the Commission have reported to the Appeal Court on any matter which they have been directed under subsection (1) above to investigate, the Court--

(a) shall notify the appellant and the respondent that the Commission have reported; and

(b) may make available to the appellant and the respondent the report of the Commission and any statements, opinions and reports which accompanied it.

(6) In this section "respondent" includes a person who will be a respondent if leave to appeal is granted. "

Amendments of the Criminal Appeal Act 1995

2 After section 12 of the Criminal Appeal Act 1995 (c. 35) insert--

" 12A Cases dealt with by the Court Martial

(1) Where a person has been convicted by the Court Martial (including on an appeal brought from the Service Civilian Court), the Commission--

(a) may at any time refer the conviction to the Court Martial Appeal Court, and

(b) (whether or not they refer the conviction) may at any time refer to the Court Martial Appeal Court any sentence (other than one fixed by law) imposed by the Court Martial on, or in subsequent proceedings relating to, the conviction.

(2) Where a person has been convicted by the Service Civilian Court and sentenced by the Court Martial on an appeal against sentence only, the Commission may at any time refer to the Court Martial Appeal Court that sentence of the Court Martial and any other sentence imposed by the Court Martial in respect of a connected conviction within the meaning given by section 12B(6).

(3) A reference under subsection (1) of a person's conviction shall be treated for all purposes as an appeal by the person under section 8 of the Court Martial Appeals Act against the conviction.

(4) On a reference under subsection (1) of a person's conviction, the Commission may give notice to the Court Martial Appeal Court that any related conviction specified in the notice is to be treated as referred to that court under subsection (1).

(5) A reference under subsection (1) of a sentence imposed on, or in subsequent proceedings relating to, a person's conviction shall be treated for all purposes as an appeal by the person under section 8 of the Court Martial Appeals Act against--

(a) the sentence, and

(b) any other sentence (other than one fixed by law) imposed by the Court Martial on, or in subsequent proceedings relating to, the conviction or any related conviction.

(6) A reference under subsection (2) of a person's sentence shall be treated for all purposes as an appeal by the person under section 8 of the Court Martial Appeals Act against--

(a) the sentence, and

(b) any other sentence imposed by the Court Martial in respect of a connected conviction within the meaning given by section 12B(6).

(7) Where a finding of not guilty by reason of insanity has been made by the Court Martial in the case of a person, the Commission may at any time refer the finding to the Court Martial Appeal Court; and a reference under this subsection shall be treated for all purposes as an appeal by the person under section 21 of the Court Martial Appeals Act against the finding.

(8) Where the Court Martial has found that a person is under a disability and that he did the act or made the omission charged against him, the Commission may at any time refer either or both of those findings to the Court Martial Appeal Court; and a reference under this subsection shall be treated for all purposes as an appeal by the person under section 24 of the Court Martial Appeals Act against the finding or findings referred.

(9) For the purposes of this section convictions are "related" if they are of the same person in the same proceedings.

12B Cases dealt with by the Service Civilian Court

(1) Where a person has been convicted of an offence by the Service Civilian Court, the Commission--

(a) may at any time refer the conviction to the Court Martial; and

(b) (whether or not they refer the conviction) may at any time refer to the Court Martial any sentence imposed by the Service Civilian Court on, or in subsequent proceedings relating to, the conviction.

(2) A reference under subsection (1) of a person's conviction shall be treated for all purposes as an appeal by the person under section 285 of the Armed Forces Act 2006 against the conviction (whether or not he pleaded guilty).

(3) A reference under subsection (1) of a sentence imposed on, or in subsequent proceedings relating to, a person's conviction shall be treated for all purposes as an appeal by the person under section 285 of the Armed Forces Act 2006 against--

(a) the sentence, and

(b) any other sentence imposed by the Service Civilian Court on, or in subsequent proceedings relating to, the conviction or any connected conviction.

(4) On a reference under subsection (1) of a person's conviction, the Commission may give notice to the Court Martial that any connected conviction which is specified in the notice is to be treated as referred to the Court Martial under subsection (1).

(5) On a reference under this section the Court Martial may not impose a sentence more severe than that imposed by the Service Civilian Court.

(6) For the purposes of this section convictions are "connected" if they are of the same person by the same court on the same day. "

3 In section 13(1) of that Act (conditions for making of references), for "12" substitute "12B".

4 (1) Section 14 of that Act (further provisions about references) is amended as follows.

(2) In subsection (1) for "12" substitute "12B".

(3) In subsection (2) for "12" substitute "12B".

(4) In subsection (3)--

(a) for "9 or 10" substitute "9, 10 or 12A";

(b) after "Court of Appeal", in the first place where it occurs, insert "or, as the case may be, of the Court Martial Appeal Court";

(5) In subsection (4) for "12" substitute "12B".

(6) In subsection (4A) for "9 or 10" substitute "9, 10 or 12A".

(7) In subsection (4B) after "Court of Appeal" insert "or, as the case may be, the Court Martial Appeal Court".

(8) In subsection (5) for "11 or 12" substitute "11, 12 or 12B".

(9) In subsection (6) for "12" substitute "12B".

5 (1) Section 15 of that Act (investigations for Court of Appeal) is amended as follows.

(2) In the sidenote after "Court of Appeal" insert "and Court Martial Appeal Court".

(3) In subsection (1)--

(a) after "a direction" insert "(a "relevant direction")";

(b) after "1980 Act" insert "or by the Court Martial Appeal Court under section 29A(1) of the Court Martial Appeals Act,".

(4) In subsection (2) for "Court of Appeal" substitute "relevant Court".

(5) In subsection (3)--

(a) in paragraph (a)--

(i) for "Court of Appeal" substitute "relevant Court";

(ii) for the words from "direction" to "1980 Act" substitute "relevant direction";

(b) in paragraph (b) for "Court of Appeal" substitute "relevant Court".

(6) In subsection (4)--

(a) for the words from "report to" to "1980 Act" substitute "report to the relevant Court on the investigation of any matter specified in a relevant direction";

(b) for "Court of Appeal", in the second place where it occurs, substitute "relevant Court".

(7) After subsection (7) add--

" (8) In this section "relevant Court", in relation to a direction, means the court that gave the direction. "

6 In section 16 of that Act (assistance in connection with prerogative of mercy), after subsection (2) add--

" (3) In subsection (1) "conviction" includes a conviction by the Court Martial or the Service Civilian Court, and in subsection (2) "case" includes the case of such a conviction. "

7 (1) Section 18 of that Act (Government documents etc relating to current or old cases) is amended as follows.

(2) In subsection (2) at the end of paragraph (b) add " or

(c) is considering the case, or has at any earlier time considered the case, with a view to deciding whether to make a reference under section 34 of the Court Martial Appeals Act or whether to recommend the exercise of Her Majesty's prerogative of mercy in relation to a conviction by the Court Martial or the Service Civilian Court. "

(3) After subsection (4) add--

" (5) The Secretary of State shall, if required by the Commission to do so, give to the Commission any document or other material which--

(a) contains representations made to him in relation to any case to which this subsection applies, or

(b) was received by him in connection with any such case otherwise than from a person serving in a government department,

and may give to the Commission any document or other material which is relevant to any such case but does not fall within paragraph (a) or (b).

(6) Subsection (5) applies to a case if the Secretary of State is considering the case, or has at any earlier time considered the case, as mentioned in subsection (2)(c). "

8 (1) Section 19 of that Act (power to require appointment of investigating officers) is amended as follows.

(2) In subsection (3) after "police" insert "or Provost Marshal".

(3) In subsection (4)(b) for the words from "in another" to the end substitute "either in another police force selected by the chief officer or in a service police force selected by him."

(4) After subsection (4) insert--

" (4A) A requirement under this section imposed on a Provost Marshal may be--

(a) a requirement to appoint a person serving in the service police force in relation to which he is Provost Marshal, or

(b) a requirement to appoint a person serving either in a police force selected by the Provost Marshal or in another service police force selected by him. "

(5) In subsection (5)--

(a) for the words from "imposed" to "may be" substitute "imposed otherwise than on a chief officer of police or a Provost Marshal may be";

(b) in paragraph (a) after "body" insert "in relation to which the person on whom the requirement is imposed is the appropriate person";

(c) in paragraph (b) for the words from "police force" to "having" substitute "police force or service police force, or in a public body (other than such a force) having".

(6) In subsection (6)--

(a) after "police force" insert "or service police force";

(b) after "(4)" insert ", (4A)".

9 (1) Section 22 of that Act (meaning of "public body" etc) is amended as follows.

(2) In subsection (4) (meaning of "the appropriate person"), after "means" insert ", subject to subsection (4B)".

(3) After subsection (4) add--

" (4A) Subsection (4B) applies in relation to--

(a) the Royal Navy, the Royal Marines, the Royal Fleet Reserve, the Royal Naval Reserve and the Royal Marines Reserve,

(b) the regular army (within the meaning of the Armed Forces Act 2006), the Army Reserve and the Territorial Army, and

(4B) In relation to a public body mentioned in subsection (4A), "the appropriate person" means--

(a) in section 17, the Secretary of State;

(b) in sections 19 and 20--

(i) in the case of a body mentioned in subsection (4A)(a), the Provost Marshal for the Royal Navy Police,

(ii) in the case of a body mentioned in subsection (4A)(b), the Provost Marshal for the Royal Military Police,

(iii) in the case of a body mentioned in subsection (4A)(c), the Provost Marshal for the Royal Air Force Police.

(4C) In section 19 "service police force" has the same meaning as in the Armed Forces Act 2006. "

10 (1) Section 30 of that Act is amended as follows.

(2) In subsection (1) after the definition of "the Commission" insert--

" "the Court Martial Appeals Act" means the Court Martial Appeals Act 1968, " .

(3) In subsection (2) (meaning of "sentence"), after paragraph (d) add--

" (e) in section 12A has the same meaning as in the Court Martial Appeals Act,

(f) in section 12B has the same meaning as in section 285 of the Armed Forces Act 2006. "

11 (1) In section 33 of that Act (extent), after subsection (4) add--

" (5) Nothing in this section affects the extent of--

(a) section 12A or 12B;

(b) section 14(4A) and (4B) so far as relating to the Court Martial Appeal Court; or

(6) Section 384 of the Armed Forces Act 2006 (Channel Islands, Isle of Man and British overseas territories) applies in relation to the provisions mentioned in subsection (5) above as it applies in relation to that Act. "

Section 351

SCHEDULE 12 Detention etc of persons in overseas service hospitals

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