Part II Appeals from Courts-Martial

Retrial

18 Retrial generally excluded.

Except as provided by this Act, where the conviction of a person by court-martial for an offence has been quashed under this Act, he shall not be liable to be tried again for that offence by a court-martial or by any other court.

19 Power to authorise retrial in certain cases.

(1)

The Appeal Court shall have the power, on quashing a conviction, to make an order authorising the appellant to be retried by court-martial, but shall only exercise this power when F1 . . . it appears to the Court that the interests of justice require that an order under this section should be made.

(2)

This section has effect notwithstanding the restrictions on retrial imposed by section 134 of the Army Act and section 134 of the M1Air Force M2Act.

(3)

An appellant shall not be retried under this section for an offence other than—

(a)

the offence of which he was convicted by the original court-martial and in respect of which his appeal is allowed as mentioned in subsection (1) above;

(b)

any offence of which he could have been convicted at the original court-martial on a charge of the first-mentioned offence; or

(c)

any offence charged in the alternative in respect of which the court-martial recorded no finding in consequence of convicting him of the first-mentioned offence.

(4)

A person who is to be retried under this section for an offence shall, if the Appeal Court so directs, be retried on a fresh charge or charges specified in the direction; but whether he is so tried or is retried on one or more of the original charges, no fresh investigation or other steps shall be taken under sections 76 to 79 of the Army Act or sections 76 to 79 of the Air Force Act (investigation and summary disposal of charge by commanding officer) in relation to the charge or charges on which he is to be retried.

20 Implementation of authority for retrial, and supplementary orders of Appeal Court.

(1)

The limitations imposed by—

  • section 52 of the M3Naval Discipline Act;

  • section 132 of the Army Act; and

  • section 132 of the Air Force Act,

with respect to the time within which a trial under those Acts respectively may be begun, shall not apply in the case of a retrial authorised by an order of the Appeal Court under section 19 of this Act; but a person to whom such an order applies shall not be retried unless the order convening the court-martial is issued within the period of three months beginning with the date of the order under section 19.

(2)

The Appeal Court may, where they authorise a retrial, make such orders as appear to them to be necessary or expedient for the retention until the relevant time of property or money which has been restored, delivered or paid in pursuance of an order made on or in consequence of the original conviction or has been placed in safe custody while the operation of any such order is suspended.

(3)

Where retrial is authorised in the case of a person who immediately before the date of the authorisation was liable to be detained in pursuance of F2an order or direction under United Kingdom mental health legislation, that F3order or direction shall continue in force until the relevant time as if his conviction had not been quashed.

(4)

The legislation referred to in subsection (3) above is F4Part III of the Mental Health Act 1983, F5Part VI of the Mental Health (Scotland) Act 1984and Part III of the Mental Health F6(Northern Ireland) Order 1986.

F7(4A)

Where retrial is authorised in the case of a person who—

(a)

was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

(b)

was then made subject to a community treatment order (within the meaning of that Act); and

(c)

was subject to that community treatment order immediately before the date of the authorisation,

the order or direction under Part 3 of that Act and the community treatment order shall continue in force until the relevant time (as defined in subsection (3A)) as if his conviction had not been quashed.

(4B)

An order under subsection (1E)(a) is of no effect in relation to a person for so long as he is subject to a community treatment order.

(5)

In subsections (2) and (3) above the references to “the relevant time” are references to the expiration of the period of three months mentioned in subsection (1) of this section or, if during that period a court-martial has been convened for the retrial of an appellant, the time when his case is finally disposed of:

Provided that for the purposes of subsection (2) above the relevant time, in a case where the appellant is found guilty on his retrial, is the expiration of the period of twenty-eight days beginning with the date of the finding.

(6)

Schedule 1 to this Act contains additional provisions applicable to a retrial authorised by order of the Appeal Court under section 19 of this Act; and of the four Parts of the Schedule, Part I applies to retrial under the M4Naval Discipline Act; Part II applies to retrial under the Army Act; Part III applies to retrial under the M5Air Force M6Act; and Part IV applies to all three cases.