The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

Substitution of conviction on different charge otherwise than after guilty plea U.K.

113.—(1) This article applies, and section 14 of CMAA 1968 does not apply, where—

(a) an appellant has been convicted by a court-martial of an offence to which he did not plead guilty (“offence A”);

(b) the court-martial could lawfully have found him guilty of some other offence (“offence B”); and

(c) it appears to the Appeal Court on an appeal against conviction that the court-martial must have been satisfied of facts which prove him guilty of offence B.

(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding in relation to offence A a finding of guilty of offence B.

(3) Where the Appeal Court exercises the power conferred by paragraph (2), it may exercise any power that it would have had if—

(a) the court-martial had convicted the appellant of offence B instead of offence A;

(b) the court-martial had passed, in respect of offence B (and any other offence in respect of which the sentence in respect of offence A was passed), the sentence that it passed in respect of offence A; and

(c) the appellant had appealed against that sentence.