Armed Forces Act 1996 (c. 46)

(The document as of February, 2008)

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(2) Where an admission order is made by a court-martial, the court may, in such circumstances as may be prescribed, direct the accused to be treated as if an order restricting his discharge had been made under the appropriate mental health legislation, either without limit of time or (if a civil court would have been permitted to do so under the legislation concerned) during such period as may be specified in the direction.

(3) The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an admission order has been made.

(4) Regulations under subsection (3) above may in particular make provision--

(a) for a person in respect of whom an admission order has been made to be conveyed to, and detained in, a place of safety pending his admission to the hospital;

(b) for the period within which such a person is to be admitted to the hospital;

(c) for the appropriate mental health legislation to apply, with such modifications as may be prescribed, in relation to admission orders as the legislation concerned applies in relation to hospital orders;

(d) for a person in respect of whom an admission order has been made to be remitted for trial in such circumstances as may be prescribed.

(5) In this section "hospital", "hospital order" and "place of safety" have the same meanings as in the appropriate mental health legislation.

63C Guardianship orders

(1) In this Act "guardianship order" means an order placing the accused under the guardianship of--

(a) in a case where the order is treated as if it had been made by a civil court in England and Wales, a local social services authority or such other person approved by a local social services authority as may be specified in the order;

(b) in a case where the order is treated as if it had been made by a civil court in Scotland, a local authority or such other person approved by a local authority as may be specified in the order;

(c) in a case where the order is treated as if it had been made by a civil court in Northern Ireland, a Board or an authorised HSS trust or such other person approved by a Board or an authorised HSS trust as may be specified in the order.

(2) In subsection (1) above--

"authorised HSS trust" and "Board" have the same meanings as in the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986;
"local authority" has the same meaning as in the [1984 c. 36.] Mental Health (Scotland) Act 1984; and
"local social services authority" has the same meaning as in the [1983 c. 20.] Mental Health Act 1983.

(3) A court-martial shall not make a guardianship order unless--

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that--

(i) the accused is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and

(ii) the mental disorder is of a nature or degree which warrants his reception into guardianship; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the accused and the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a guardianship order.

(4) A court-martial shall not make a guardianship order unless it is also satisfied that the authority or other person intended to be specified in the order is willing to receive the accused into guardianship.

(5) A guardianship order shall specify the form or forms of mental disorder referred to in subsection (3)(a) above from which, upon the evidence taken into account under that subsection, the accused is found by the court to be suffering; and a guardianship order shall not be made unless the accused is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of those forms of mental disorder.

(6) The appropriate mental health legislation shall apply, with such modifications as may be prescribed, in relation to guardianship orders under this section as it applies to guardianship orders under the legislation concerned.

(7) In this section "mental disorder", "mental impairment", "psychopathic disorder" and "severe mental impairment" have the same meanings as in the Mental Health Act 1983.

63D Supervision and treatment orders

(1) In this Act "supervision and treatment order" means an order requiring the person in respect of whom it is made ("the supervised person")--

(a) to be under the supervision of a person ("the supervising officer") specified in the order for a period specified in the order of not more than two years;

(b) to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner at a place specified in the order with a view to the improvement of his mental condition; and

(2) The Secretary of State may by order direct that subsection (1)(a) above shall be amended by substituting, for the period for the time being specified in that paragraph such other period as may be specified in the order.

(3) A court-martial shall not make a supervision and treatment order unless it is satisfied--

(a) that, having regard to all the circumstances of the case, the making of such an order is the most suitable means of dealing with the accused;

(b) on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved, that the mental condition of the accused--

(i) is such as requires and may be susceptible to treatment; but

(ii) is not such as to warrant the making of an admission order or a guardianship order.

(4) The court shall not make a supervision and treatment order unless it is also satisfied--

(a) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

(b) that arrangements have been made for the treatment intended to be specified in the order (including arrangements for the reception of the accused where he is to be required to submit to treatment as a resident patient).

(5) The Secretary of State may by regulations make further provision in relation to supervision and treatment orders.

(6) Regulations under subsection (5) above may in particular make provision--

(a) as to the procedure to be followed by a court-martial making a supervision and treatment order;

(b) as to the requirements which may be specified in such an order;

(d) for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

(e) for the amendment and revocation of any supervision and treatment order.

63E Provisions supplementary to sections 62A to 63D

(1) In this section and sections 62A to 63D above--

"the appropriate mental health legislation" means--
(a)
in a case where an order is treated as if it had been made by a civil court in England and Wales, the [1983 c. 20.] Mental Health Act 1983;
(b)
in a case where an order is treated as if it had been made by a civil court in Scotland, the [1984 c. 36.] Mental Health (Scotland) Act 1984 and Part VI of the [1995 c. 43.] Criminal Procedure (Scotland) Act 1995;
(c)
in a case where an order is treated as if it had been made by a civil court in Northern Ireland, the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986;
"duly approved" means--
(a)
approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);
(b)
approved for the purposes of section 20 or 39 of the Mental Health (Scotland) Act 1984 by a Health Board as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); or
(c)
appointed for the purposes of Part II of the Mental Health (Northern Ireland) Order 1986 by the Mental Health Commission for Northern Ireland;
"prescribed" means prescribed by regulations made by the Secretary of State.

(2) For the purposes of the provisions of sections 62A, 63, 63C and 63D of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.

(3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then--

(a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to him; and

(c) the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

(4) The power of the Secretary of State to make regulations under sections 63A, 63B, 63C and 63D above, and orders under section 63D(2) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. " .

5 In section 135(1) of the 1957 Act (general provisions as to interpretation)--

(a) before the definition of "aircraft" there shall be inserted the following definition--

" "admission order" has the meaning assigned to it by section 63B(1) of this Act; " ;

(b) after the definition of "Governor" there shall be inserted the following definition--

" "guardianship order" has the meaning assigned to it by section 63C(1) of this Act; " ; and

" "supervision and treatment order" has the meaning assigned to it by section 63D(1) of this Act; " .

The Courts-Martial (Appeals) Act 1968 (c. 20)

6 For section 16 of the [1968 c. 20.] Courts-Martial (Appeals) Act 1968 ("the 1968 Act") there shall be substituted the following section--

" 16 Substitution of finding of insanity or findings of unfitness to plead etc

(1) This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion--

(a) that the proper finding would have been one of not guilty by reason of insanity; or

(b) that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) Subject to subsections (3) and (4) below, the Appeal Court shall make one of the following orders in respect of the appellant, namely--

(a) an admission order;

(b) a guardianship order;

(d) an order discharging him absolutely,

as they think most suitable in all the circumstances of the case.

(3) The Appeal Court may not make an order under subsection (2)(b), (c) or (d) above if the offence to which the appeal relates is an offence the sentence for which is fixed by law.

(4) An order under subsection (2)(a), (b) or (c) above shall be treated as if it had been made by a civil court in England and Wales, Scotland or Northern Ireland, as the Appeal Court may direct, and the appropriate mental health legislation shall apply accordingly with such modifications as may be prescribed by regulations made by the Secretary of State.

(5) The provisions of, or made under, the relevant Service Act in relation to admission orders, guardianship orders and supervision and treatment orders shall apply to the Appeal Court as if--

(a) references to a court-martial were references to the Appeal Court;

(b) references to the accused were references to the appellant,

and with such other modifications as may be prescribed by regulations made by the Secretary of State.

(6) The power of the Secretary of State under subsections (4) and (5) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament. "

7 In section 21(1) of the 1968 Act (appeal against finding of not guilty by reason of insanity), after the word "except" there shall be inserted the words "section 8(2) and".

8 In section 22(4) of the 1968 Act (consequences where appeal under section 21 allowed), at the beginning there shall be inserted the words "Subject to section 23 below,".

9 For section 23 of the 1968 Act there shall be substituted the following sections--

" 23 Substitution of findings of unfitness to plead etc

(1) This section applies where, on an appeal under section 21 of this Act, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion that--

(a) the case is not one where there should have been a finding of not guilty; but

(b) there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) Subject to subsections (3) and (4) below, the Appeal Court shall make one of the following orders in respect of the appellant, namely--

(a) an admission order;

(b) a guardianship order;

(d) an order discharging him absolutely,

as they think most suitable in all the circumstances of the case.

(3) The Appeal Court may not make an order under subsection (2)(b), (c) or (d) above if the offence to which the appeal relates is an offence the sentence for which is fixed by law.

(5) The provisions of, or made under, the relevant Service Act in relation to admission orders, guardianship orders and supervision and treatment orders shall apply to the Appeal Court as if--

(a) references to a court-martial were references to the Appeal Court;

(b) references to the accused were references to the appellant,

and with such other modifications as may be prescribed by regulations made by the Secretary of State.

(6) The power of the Secretary of State under subsections (4) and (5) above to make regulations shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

23A Substitution of finding of not guilty

(1) This section applies where, in accordance with section 22(4) of this Act, the Appeal Court substitute a finding of not guilty and the Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion--

(a) that the appellant is suffering from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) that he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(2) The Appeal Court shall--

(a) in the case of an appellant detained pursuant to an admission order made by a court-martial, make an order for his continued detention;

(b) in any other case, make an order that the appellant be admitted for assessment, in accordance with regulations made by the Secretary of State, to such hospital as may be specified by the Secretary of State.

(3) An order under subsection (2) above shall be treated as if it had been made by a civil court in England and Wales, Scotland or Northern Ireland, as the Appeal Court may direct, and the appropriate mental health legislation shall apply accordingly with such modifications as may be prescribed by regulations made by the Secretary of State.

(4) The power of the Secretary of State under subsections (2)(b) and (3) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) In this section "hospital" and "mental disorder" have the same meanings as in the appropriate mental health legislation. " .

10 (1) Section 24 of the 1968 Act (appeal against finding of unfitness to stand trial) shall be amended as follows.

(2) In subsection (1)--

(a) for the words "his trial" there shall be substituted the words "trial and to have done the act or made the omission charged against him"; and

(b) for the words "the finding" there shall be substituted the words "either or both of those findings".

(3) In subsection (2), after the word "except" there shall be inserted the words "section 8(2) and".

11 For section 25 of the 1968 Act there shall be substituted the following section--

" 25 Disposal of appeal under section 24

(1) This section applies to appeals under section 24 of this Act.

(2) Where the Appeal Court allow an appeal against a finding that the appellant is unfit to stand trial--

(a) the appellant may be tried accordingly for the offence with which he was charged; and

(b) the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant.

(3) Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity). "

12 (1) Section 57 of the 1968 Act (interpretation) shall be amended as follows.

(2) In subsection (1)--

(a) before the definition of "the Air Force Act" there shall be inserted the following definition--

" "admission order" has the same meaning as in the relevant Service Act; " ;

(b) after the definition of "appellant" there shall be inserted the following definition--

" "the appropriate mental health legislation" means--

(a) in a case where an order is treated as if it had been made by a civil court in England and Wales, the [1983 c. 20.] Mental Health Act 1983;

(b) in a case where an order is treated as if it had been made by a civil court in Scotland, the [1984 c. 36.] Mental Health (Scotland) Act 1984 and Part VI of the [1995 c. 43.] Criminal Procedure (Scotland) Act 1995;

(c) in a case where an order is treated as if it had been made by a civil court in Northern Ireland, the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986; " ;

" "civil court" has the same meaning as in the relevant Service Act; " ;

(d) after the definition of "court-martial;" there shall be inserted the following definition--

" "duly approved" means--

(a) approved for the purposes of section 12 of the [1983 c. 20.] Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

(b) approved for the purposes of section 20 or 39 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 by a Health Board as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); or

(c) appointed for the purposes of Part II of the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986 by the Mental Health Commission for Northern Ireland; " ;

(e) after the definition of "enactment" there shall be inserted the following definition--

" "guardianship order" has the same meaning as in the relevant Service Act; " ;

(f) at the end there shall be inserted the following definition--

" "supervision and treatment order" has the same meaning as in the relevant Service Act. "

(3) After subsection (2) there shall be inserted the following subsections--

" (2A) For the purposes of the provisions of sections 16, 23 and 23A of this Act which permit the Appeal Court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (2B) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the Appeal Court may require the signatory of any such report to be called to give oral evidence.

(2B) Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then--

(a) if the appellant is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the appellant is not so represented, the substance of the report shall be disclosed to him; and

(c) the appellant may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the appellant or on his behalf. "

Section 10.

SCHEDULE 3 Community supervision orders

The 1955 Acts

1 (1) Paragraph 4 of Schedule 5A to each of the 1955 Acts (power of court to impose community supervision order on trial of civilian) shall be amended as follows.

(2) In sub-paragraph (1), for the words "12 months" there shall be substituted the words "three years".

(3) After sub-paragraph (7) there shall be inserted the following sub-paragraphs--

" (7A) Without prejudice to any other power of arrest, a person found committing an offence under sub-paragraph (6) above or alleged to have committed or reasonably suspected of having committed any such offence, may be arrested by a provost officer, by a warrant officer or non-commissioned officer legally exercising authority under a provost officer or on his behalf, or by order of any officer of the regular forces.

(7B) The power of arrest given to any person by sub-paragraph (7A) above may be exercised either personally or by ordering into arrest the person to be arrested or by giving orders for that person's arrest.

(7C) A person shall not be arrested by virtue of sub-paragraph (7A) above after the end of a period of 6 months beginning with the end of the supervision period.

(7D) No proceedings shall be taken against a person for an offence under sub-paragraph (6) above unless the trial is begun within 6 months after the end of the supervision period. "

(4) In sub-paragraph (10), for "£50" there shall be substituted "£1,000".

2 In section 209 of each of the 1955 Acts (application to civilians), after subsection (3B) there shall be inserted the following subsection--

" (3C) In its application to a person subject to a community supervision order under paragraph 4 of Schedule 5A to this Act, section 132 of this Act shall have effect as if subsections (3) and (3A) were omitted. "

The 1957 Act

3 (1) Paragraph 4 of Schedule 4A to the 1957 Act (power of court to impose community supervision order on trial of civilian) shall be amended as follows.

(2) In sub-paragraph (1), for the words "12 months" there shall be substituted the words "three years".

(3) After sub-paragraph (7) there shall be inserted the following sub-paragraphs--

" (7A) Without prejudice to any other power of arrest, a person found committing an offence under sub-paragraph (6) above or alleged to have committed or reasonably suspected of having committed any such offence, may be arrested by a provost officer, by any officer or person legally exercising authority under a provost officer or on his behalf, or by or on the orders of any officer subject to this Act.

(7C) A person shall not be arrested by virtue of sub-paragraph (7A) above after the end of a period of 6 months beginning with the end of the supervision period.

(7D) No proceedings shall be taken against a person for an offence under sub-paragraph (6) above unless the trial is begun within 6 months after the end of the supervision period. "

(4) In sub-paragraph (10), for "£50" there shall be substituted "£1,000".

4 In the Fourth Schedule to the 1957 Act (application to civilians), after paragraph 4A there shall be inserted the following paragraph--

" 4B In its application to a person subject to a community supervision order under paragraph 4 of Schedule 4A to this Act, section 52 of this Act shall have effect as if subsection (2) was omitted. "

Section 13.

SCHEDULE 4 Schedule to be inserted in the Rehabilitation of Offenders Act 1974

" Schedule Section 6(4): service disciplinary convictions

1 Any conviction for an offence mentioned in this Schedule is a conviction referred to in section 6(6)(bb) of this Act (convictions to be disregarded for the purposes of extending a period of rehabilitation following subsequent conviction).

Provisions of the Army Act 1955 and the Air Force Act 1955

2 Any offence under any of the provisions of the [1955 c. 18.] Army Act 1955 or the [1955 c. 19.] Air Force Act 1955 listed in the first column of the following table:--

Provision	Subject-matter
Section 29	Offences by or in relation to sentries, persons on watch etc.
Section 29A	Failure to attend for duty, neglect of duty etc.
Section 33	Insubordinate behaviour.
Section 34	Disobedience to lawful commands.
Section 34A	Failure to provide a sample for drug testing.
Section 35	Obstruction of provost officers.
Section 36	Disobedience to standing orders.
Section 38	Absence without leave.
Section 39	Failure to report or apprehend deserters or absentees.
Section 42	Malingering.
Section 43	Drunkenness.
Section 43A	Fighting, threatening words etc.
Section 44	Damage to, and loss of, public or service property etc.
Section 44A	Damage to, and loss of, Her Majesty's aircraft or aircraft material.
Section 44B	Interference etc. with equipment, messages or signals.
Section 45	Misapplication and waste of public or service property.
Section 46	Offences relating to issues and decorations.
Section 47	Billeting offences.
Section 48	Offences in relation to requisitioning of vehicles.
Section 50	Inaccurate certification.
Section 51	Low flying.
Section 52	Annoyance by flying.
Section 54	Permitting escape, and unlawful release of prisoners.
Section 55	Resistance to arrest.
Section 56	Escape from confinement.
Section 57	Offences in relation to courts-martial.
Section 61	Making of false statements on enlistment.
Section 62	Making of false documents.
Section 63	Offences against civilian population.
Section 69	Conduct to prejudice of military discipline or air-force discipline.

3 Any offence under section 68 (attempt to commit military offence) or 68A (aiding and abetting etc., and inciting, military offence) of the [1955 c. 18.] Army Act 1955 in relation to an offence under any of the provisions of that Act listed in paragraph 2.

4 Any offence under section 68 (attempt to commit air-force offence) or 68A (aiding and abetting etc., and inciting, air-force offence) of the [1955 c. 19.] Air Force Act 1955 in relation to an offence under any of the provisions of that Act listed in paragraph 2.

Provisions of the Naval Discipline Act 1957

5 Any offence under any of the provisions of the [1957 c. 53.] Naval Discipline Act 1957 listed in the first column of the following table:--

Provision	Subject-matter
Section 6	Offences by or in relation to sentries, persons on watch etc.
Section 7	Failure to attend for duty, neglect of duty etc.
Section 11	Insubordinate behaviour.
Section 12	Disobedience to lawful commands.
Section 12A	Failure to provide a sample for drug testing.
Section 13	Fighting, threatening words etc.
Section 14	Obstruction of provost officers.
Section 14A	Disobedience to standing orders.
Section 17	Absence without leave etc.
Section 18	Failure to report deserters and absentees.
Section 21	Low flying.
Section 22	Annoyance by flying.
Section 25	Inaccurate certification.
Section 27	Malingering.
Section 28	Drunkenness.
Section 29	Damage to, and loss of, public or service property etc.
Section 29A	Damage to, and loss of, Her Majesty's aircraft or aircraft material.
Section 29B	Interference etc. with equipment, messages or signals.
Section 30	Misapplication and waste of public or service property.
Section 31	Offences relating to issues and decorations.
Section 32	Billeting offences.
Section 33	Offences in relation to the requisitioning of vehicles etc.
Section 33A	Permitting escape, and unlawful release of prisoners.
Section 33B	Resistance to arrest.
Section 33C	Escape from confinement.
Section 34A	False statements on entry.
Section 35	Falsification of documents.
Section 35A	Offences against civilian population.
Section 38	Offences in relation to courts-martial.
Section 39	Conduct to the prejudice of naval discipline.

6 Any offence under section 40 (attempt to commit naval offence) or 41 (aiding and abetting etc., and inciting, naval offence) of the [1957 c. 53.] Naval Discipline Act 1957 in relation to an offence under any of the provisions of that Act listed in paragraph 5.

Section 16.

SCHEDULE 5 Review of findings and sentence

The 1955 Acts

1 The 1955 Acts shall be amended as follows.

2 Section 108 (power of accused to present petition against finding or sentence at any time after finding or sentence) shall cease to have effect.

3 For section 112 (approval required for death sentences) there shall be substituted the following section--

" Review of proceedings of courts-martial

112 Approval required for death sentences

(1) A sentence of death passed by a court-martial shall not be carried out until it has been reviewed under section 113 of this Act and has not been quashed or replaced by another sentence on the review.

(2) A sentence of death passed by a court-martial shall not be carried out in a colony unless it is also approved by the Governor of the colony. "

4 For section 113 (review of findings and sentences of courts-martial) there shall be substituted the following sections--

" 113 Review of findings and sentences of courts-martial

(1) Where a court-martial has found the accused guilty of any offence, the accused may, before the end of the prescribed period after sentence is passed, present a petition to the Defence Council against finding or sentence or both.

(2) The reviewing authority shall, in accordance with subsections (3) and (4) below, review any finding of guilt made, and sentence passed, by a court-martial.

(3) The review under this section shall (if it does not begin sooner) begin as soon as is practicable after--

(a) in a case where a petition has been presented under this section, the presentation of the petition;

(b) in any other case, the end of the period within which a petition under this section may be presented.

(4) Where an application for leave to appeal to the Courts-Martial Appeal Court against a finding or sentence has been made before the review under this section of the finding or sentence has been completed--

(a) the reviewing authority shall complete the review as soon as is practicable; but

(b) if leave to appeal is granted before the review has been completed, the authority shall cease considering the review.

(5) For the purposes of this Act the reviewing authority is--

(a) the Defence Council; or

(b) any officer to whom all or any of the powers of the Defence Council as reviewing authority may be delegated by the Defence Council.

(6) A sentence of death and the finding of guilty in consequence of which it was passed may not be reviewed by an officer to whom powers are delegated under subsection (5)(b) above.

113AA Powers of the reviewing authority

(1) On a review under section 113 of this Act of a finding or sentence of a court-martial the reviewing authority has the following powers.

(2) In so far as the review is of a finding of guilt, the authority may--

(a) quash that finding and, if the sentence relates only to that finding, quash the sentence passed in consequence of that finding;

(b) substitute a finding mentioned in subsection (3) below if that finding could have been validly made by the court-martial and the authority is of the opinion that the court-martial must have been satisfied of facts which would justify the making of that finding;

and, where another finding is so substituted, the authority may pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper.

(3) The findings referred to in subsection (2) above are--

(a) any finding of guilt which could have been validly made by the court-martial on the charge before it;

(b) if the court-martial recorded no finding on a charge alternative to a charge on which the court made the finding being reviewed, a finding of guilt on that alternative charge.

(4) In so far as the review is of a sentence, the authority may quash the sentence or substitute a sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) which was open to the court-martial.

(5) In reviewing a sentence, the authority may--

(a) revoke an order made by the court under section 120A(1) of this Act;

(b) remit in whole or part any punishment awarded by the court;

(c) commute any such punishment for one or more punishments provided by this Act, being less than the punishment commuted.

(6) Where it appears to the reviewing authority that the court-martial, in sentencing the accused, exceeded or erroneously exercised its powers to take other offences into consideration, the authority shall (whether or not substituting a different sentence or remitting or commuting punishment) annul the taking into consideration of the other offence or offences in question and any orders dependent thereon; and where the authority does so the offence or offences shall be treated for all purposes as not having been taken into consideration.

(7) Any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment--

(a) shall be treated for all purposes as having been made or passed by the court;

(b) shall be promulgated and shall have effect as from the date of promulgation. "

5 In section 113A (power of reviewing authority to authorise retrial)--

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9

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